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Khagendra Gahan Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in53(1982)CLT121; 1982CriLJ487
AppellantKhagendra Gahan
RespondentThe State
Cases ReferredDudh Nath Pandey v. State of U. P.) In
Excerpt:
.....on such facts and in such circumstances that it had been held that the conviction of three of the accused persons was not bad in law and their lordships held (para 6): the last contention advanced on behalf of the appellants is that as the high court found that only 3 persons had participated in the occurrence it was an error to convict them of dacoity, because the offence of dacoity cannot be committed by less than 5 persons. w, 1) who, on his own showing, had committed a number of dacoities and was thus a self-condemned person who had been granted pardon. the evidence must show that he is a reliable witness. shukla), it has been laid down that the evidence of an accomplice cannot be accepted in any material particular is the absence of corroboration from reliable sources. in view of..........fourteen persons had admittedly taken part in the dacoity and the charge framed against eight named persons was that they along with six others had taken part in the dacoity. it was on such facts and in such circumstances that it had been held that the conviction of three of the accused persons was not bad in law and their lordships held (para 6):the last contention advanced on behalf of the appellants is that as the high court found that only 3 persons had participated in the occurrence it was an error to convict them of dacoity, because the offence of dacoity cannot be committed by less than 5 persons. in support of this submission counsel relies on the decision in ram shankar singh v. state of u. p. : 1956crilj822 . we are unable to accept this submission. in ram shankar singh's.....
Judgment:

B.K. Behera, J.

1. The appellant, who stood trial along with other persons, being charged Under Section 395 of the I.P.C. with having committed dacoity in the house of Satrughna Sahu of village Biridisasan in the district of Balasore during the night of 12th/l3th Mar. 1975, in the course of commission of which cash, ornaments and many other articles were removed from the possesson of the victim, stands convicted thereunder and has been sentenced to undergo ramous imprisonment for a period of ten years and to pay a fine of Rs. 100/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of two months. There were in all eleven accused persons in the case of whom the appellant and eight others stood charged Under Section 395 of the I.P.C. and two others, namely, Gayadhar Sahu and Shyam alias Hunda Jena stood charged Under Section 412 of the I.P.C, All the accused persons except the appellant were acquitted of the charges.

2. Briefly stated, the case of the prosecution was that during the night of the 12th/13th Mar. 1075, the appellant and others committed dacoity in the house of Satrughna Sahu (P.W. 2) and removed cash, ornaments and other properties. On the basis of the first information report (Ext. l) lodged by P.W. 2, the Officer-in-Charge (P.W. 12) of the Simulia Police Station, took up investigation in the course of which witnesses were examined, the appellant and the other accused persons were arrested and some properties removed during the commission of dacoity were seized. Steps had been taken for the identification on of some of the suspects at a test identification parade. One of the culprits, namely, Purusottam Pati (P.W. 1) turned to be an approver. Including him, the prosecution had examined fifteen witnesses to bring home the charges. Neither the appellant nor any of the other accused persons had examined any witness in defence.

3. On a consideration of the evidence, the learned Sessions Judge discarded the case of the prosecution with regard to the other accused persons and came to find that the evidence of the approver against the appellant had received corroboration from the fact of seizure of M. O. I (4 silver Chutkis) and M. O. II (a silver ring set with a red stone) from the possession of the appellant and held that the charge of dacoity against the appellant had been established,

4. Miss p. Leela, appearing for the appellant, has submitted that the evidence on record would not warrant a conviction of the appellant as not whom the evidence of the approver could not be- accepted and the materials on record did not show that M. Os. I and II, identified by P.W. 2 as belonging to him, had been recovered from the possession of the appellant. The learned Additional Standing Counsel has, however, submitted that the appellant had properly been convicted.

5. In view of the positive case of the prosecution sought to be founded on the evidence of the approver (P.W. 1) who had specifically named himself, the appellant, the other right accused persons named in the charge Under Section 395 of the I.P.C. and Purna Dehury who not prosecuted and in view of the finding of the learned Sessions Judge that the eight persons other than the appellant named in the charge had not committed dacoity, only three other persons, namely, the approver- (P.W. 1), the appellant and Purna Dehury remained. When five or more persons conjointly commit or attempt to commit a robbery, or where 'the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity, as provided in Section 391 of the IPC When, as in the instant case, the charge did not mention that the persons named therein and others had committed dacoity and no evidence was led that besides the appellant and eight others named In the charge, there were other unnamed or unidentified persons besides, of course, Purna Dehury, who was named by the approver but not prosecuted and in the absence of any finding recorded by the learned trial court that there were persons other than those named in the charge who had committed dacoity, the appellant could not have been convicted of an offence of dacoity as the number of persons, after the acquittal of the other persons named in the charge, would come to three including the approvers and Purna Dehury who, I repeat, had not been prosecuted, in this connection, reference may be made to the principles laid down in the cases of Ram Shankar Singh v. State of U. P. reported in : 1956CriLJ822 and Sektu v. State of U. P., reported in : AIR1973SC760 . In the latter case, about fourteen persons had admittedly taken part in the dacoity and the charge framed against eight named persons was that they along with six others had taken part in the dacoity. It was on such facts and in such circumstances that it had been held that the conviction of three of the accused persons was not bad in law and their Lordships held (para 6):

The last contention advanced On behalf of the appellants is that as the High Court found that only 3 persons had participated in the occurrence it was an error to convict them of dacoity, because the offence of dacoity cannot be committed by less than 5 persons. In support of this submission counsel relies on the decision in Ram Shankar Singh v. State of U. P. : 1956CriLJ822 . We are unable to accept this submission. In Ram Shankar Singh's case six known persons were charged with dacoity and as the High Court acquitted three out of the six, it was held by this Court that the remaining three could not have been convicted for dacoity. The charge in the instant case is that apart from the named 7 or 8 persons, there were 5 or 6 others who had taken part in the commission of the dacoity. The circumstances therefore that all, except the three accused, have been acquitted by the High Court will not militate against the conviction of those three for dacoity. it is important that, it was at no time disputed that more than 13 or 14 persons had taken part in the robbery. The High Court acquitted a large number of the 'accused because their identity could not be established. The High Court, however, did not find that the group which committed robbery in the house of Jwala Prasad consisted of less than 5 persons.

In the instant case, as the specific case put forward by the prosecution was that the nine persons named in the charge besides the approver and another person named by the approver had committed dacoity, the appellant, in view of the order of acquittal of the other eight persons named in the charge, could not be convicted Under Section 395 of the IPC

6. It may, however, be seen as to whether on the evidence on record, the appellant could be convicted of the lesser offence of robbery.

7. The foundation of the prosecution case was the evidence of the approver (P. W, 1) who, on his own showing, had committed a number of dacoities and was thus a self-condemned person who had been granted pardon. According to his evidence, he, the appellant and the accused persons Sanatan Sial, Juja Gahan, Pitambar Panda, Dama Panda, Panchua Pati, Bhagaban Panda, Ananta Das, Karunakar Biswal and Purna Dehury gathered together near village Bishnupur, proceeded to village Giridi where Satrughna Sahu (P.W. 2) had been residing and committed dacoity in the houses of Satrughna Sahu (P, W. 2) and Harekrushna Sahu (P.W. 4) being armed with dangerous weapons, such as knives and removed cash, ornaments and other articles. As his evidence would show, he had been involved in other cases of dacoity in which he figured as an approver.

8. An approver's evidence has tow satisfy double test. The evidence must show that he is a reliable witness. The second test to be applied is as to whether his evidence has received sufficient corroboration : 1966CriLJ949 Saravanabhavan and Govindaswamy v. State of Madras, : 1967CriLJ671 Lachhi Ram v. State of Punjab and : 1969CriLJ1435 Piara Singh v. State of Punjab). The evidence of the approver should be corroborated in material particulars connecting each of the accused persons with the crime. The court looks with some amount of suspicion on the evidence of an accomplice witness which is tainted evidence and even Section 133 of the Evi. Act provides that the evidence of an accomplice witness should not be accepted unless corroborated. Corroboration must, however, be in respect to material particulars and not with respect to each and every item however minor or insignificant it may be. Actually the requirement of corroboration is a rule of prudence which the courts have followed for [satisfying the test of the reliability of an approver and has now been crystallized into a rule of law. These principles have been laid down by the Supreme Court in the cases of G. S. Bakshi v. State (Delhi Administration) AIR 1979 SC 569 : 1979 Cri LJ 476 and Chonampara Chellappan v. State of Kerala. : 1979CriLJ1335 . In a recent decision of the Supreme Court reported in : 1980CriLJ965 (State (Delhi Admn.) v. V.C. Shukla), it has been laid down that the evidence of an accomplice cannot be accepted in any material particular is the absence of corroboration from reliable sources.

9. In view of the aforesaid principles relating to the appreciation of the evidence of an approver, it would be necessary to find as to whether the evidence of the approver (P.W. 1) has been corroborated in material particulars with regard to this appellant. As found by the learned Sessions Judge, the appellant had not been identified as one of the culprits by any of the eye-witnesses. It is unnecessary to catalogue the evidence on which the prosecution sought reliance and which was discarded by the learned trial court. The only piece of evidence which, according to the learned Sessions Judge, corroborated the evidence of P.W. 1 with regard to this appellant was the evidence of recovery of M. O, I (silver Chutkis) and M.O. II (silver ring set with a red stone) from the backyard of the appellant. This recovery had been made on 21-4-1975, .as deposed to by the Investigating Officer (P.W. 12), vide Ext, 10/1. The witness to the recovery and seizure of M. Os. I and II was P.W. 11. There can be no doubt from the evidence that M. Os. I and II, which had properly been identified by P.W. 2 both at the test identification parade and at the trial as belonging to him, did belong to him and this finding of the learned Sessions Judge has not been and cannot be assailed. But as rightly submitted on behalf of the appellant, he could not be saddled with the responsibility with regard to recovery of M. Os, I and H said to have been made on the basis of the statement of a co-accused person, namely, Jujha Gahan, during the stage of investigation which had been admitted Under Section 27 of the Evi. Act. The appellant had, in his statement in the trial court, denied the recovery and seizure of these articles on the basis of the statement of the co-accused person.

10. The evidence of P. Ws. U and 12 as to how and on the basis of whose statement M. Os. I and n had been recovered was inconsistent, as noticed by the learned Sessions Judge in para 21 of the judgment. As stated by the investigating Officer (P.W. 12), it was not the statement of the appellant, but that of the other co-accused Juji Gahan which led to the discovery of M. Os. I and II. There was no evidence that the appellant was in exclusive possession of the place from which M. Os. I and II were recovered. The evidence would not warrant a conclusion that the place of recovery was not accessible to others. P.W. 11 had admitted in his cross-examination that the house was exclusively possessed by the accused Juja Gahan and the manure pit wherefrom the articles were recovered was within the enclosure of the Bavi of the accused Juja Gahan. Although there was evidence that the appellant and Juja Gahan were brothers, there was no evidence that they had been living together. As the evidence of P.W. 11 would show, the Bari was adjacent to the road. The possibility of someone else concealing M. Os. t and II could not, therefore, be ruled out. As a matter of fact, there was no material to indicate that the appellant was aware of the concealment of M. Os, I and II in the manure pit in the Barj. In view of the evidence in this regard, the learned Sessions Judge completely went wrong in relying on this piece of evidence against the appellant as a 'very important circumstances,' Where the statement accompanying the discovery is woefully vague to identify the authorship of concealment, the pointing out of the object may at best prove the knowledge of the accused as to where it had been kept. The element of criminality tending to connect the accused with the crime lies in the authorsh-p of concealment (See : 1979CriLJ1310 : Pohalva Motya Valvi v. State of Maharashtra and : 1981CriLJ618 Dudh Nath Pandey v. State of U. P.) In the instance case, there was complete absence of evidence to show that the appellant was the author of concealment of M. Os. I and II. He could not be attributed with the element of possession in respect of these two articles said to have been recovered on the basis of the statement of another co-accused person.

11. If the evidence with regard to the recovery of M. Os. I and II would not connect the appellant as the author of concealment and for the reasons recorded by me, it could not, there was no other evidence t0 corroborate the evidence of P.W. 1 with regard to the complicity of the appellant. The appellant could not be convicted of the offence of dacoity nor could he be convicted of the lesser offence of robbery.

12. In the result, the appeal succeeds and the same is allowed. The order of conviction and sentences passed against the appellant is set aside. The appellant be-set at liberty.


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