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Panalal Shaw and ors. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision Nos. 119 and 120 of 1983 and Jail Criminal Revision Nos. 193, 194, 195, 196 and 19
Judge
Reported in58(1984)CLT17; 1984(I)OLR472
ActsIndian Penal Code Act, 1860 - Sections 444 and 445; Evidence Act, 1872 - Sections 114
AppellantPanalal Shaw and ors.
RespondentState of Orissa
Appellant AdvocateG. Bohidar, S.K. Mund and G.N. Mohapatra in Criminal Revision No. 119 of 1983, G. Bohidar, S.K. Mund, M. Rath, A. Biswal and G.N. Mohapatra in Criminal Revision No. 120 of 1983 and ;R. Patnaik, Adv. i
Respondent AdvocateA. Rath, Additional Standing Counsel
DispositionApplication allowed
Cases ReferredShivappa and Ors. v. The State of Mysore.
Excerpt:
.....of p. in the instant case, there is no paucity of proof that the articles found in the possession of the petitioners bad been removed during the commission of dacoity at the residence of p. a like inference may be raised in the case of murder accompanied by robbery, in the case of burglary or in a case of dacoity. if some persons are found to be in possession of articles removed during the commission of dacoity immediately thereafter and they fail to explain their possession and take a false plea of denial of recovery of properties from their possession, which cannot be accepted in view of a large body of evidence from the side of the prosecution, a presumption can legally and legitimately be raised that they were the authors of the crime of dacoity......had identified the same persons whom they had identified at the test identification parade. the evidence of identification given by the witnesses in the court is substantive evidence. such evidence gets corroboration from the identification of the culprits at the test identification parade. some descriptions and features of the culprits had been given by p. w. 4 in the first information report itself. he had also given evidence about the features of the culprits in his evidence in the court. it had not been shown by the defence that the descriptions of the culprits given by p.w. 4 in the court did not tally with those mentioned in the first information report. merely because it had not been possible for p. ws. 3 and 4 to say as to how many of the culprits had moustaches or to describe.....
Judgment:

B.K. Behera, J.

1.Concurrent findings recorded by the trial and the appellate Courts holding the petitioners to be guilty and convicting them for the offences of house-breaking under Section 457 of the Indian Penal Code (for short, the Code) and dacoity under Section 395 of the Code are under challenge in this batch of Criminal Revisions. Each of the petitioners has been sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of six months under Section 457 of the Code and to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 500/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of six months under Section 395 of the Code. During the pendency of these Criminal Revisions, Birendra Kumar Patnaik, petitioner No. 1 in Criminal Revision No. 120 of 1983, died and no legal representatives of his have been brought on the record because he has not left any, as submitted by the learned counsel for this petitioner.

2. The petitioners, it was alleged, being armed with deadly weapons, entered the dwelling house of Dibakar Panigrahi (P. W. 4) while he was functioning as an Executive Engineer at Budhibili in the district of Dhenkanal, during the night of July 8/9, 1981 at about 1.30 a.m., while his family members including his wife (P. W. 3) were asleep with an employee (P. W. 9) sleeping at another place and committed dacoity in the course of which a number of gold ornaments, cash and other articles were removed causing hurt to the inmates of the house and keeping them under grave fear and restraint. After commission of dacoity, the culprits took to their heels. They intended to escape by driving away in an Ambassador car bearing registration No. ORR 1102 in which they had travelled and which had been left nearby. But as one of the tyres got flat, they were stranded and they moved in different directions for their escape when some of them were caught by the villagers and some by the police authorities who had come to the scene in the course of investigation on the basis of the first information report (Ext. 1) lodged by P. W. 4 before the Officer-in-Charge of the Police Station who had come to the spot on receiving a telephonic message that a dacoity had been committed in the house of P. W. 4. A number of articles removed during the commission of dacoity were recovered from the petitioners. In the course of investigation, a test identification parade was held for the identification of the culprits by P. Ws. 3, 4 and 9. On the completion of investigation, a charge-sheet was placed against the petitioners under Sections 395, 457 and 412 of the Code and they stood charged for the commission of these offences.

3. The prosecution had examined twenty-one witnesses. The petitioners,, who had pleaded not guilty to the charges and whose case was one of denial and false implication, had not examined any witness on their behalf.

4. On a consideration of the evidence, the learned Assistant Sessions Judge held them to be guilty of the charges punishable under Sections 457 and 395 of the Code and in view of the conviction under Section 395 of the Code, they were acquitted of the charge under Section 412 of the Code. The petitioners unsuccessfully moved the learned Sessions Judge in appeals which were dismissed.

5. Reliance had been placed by the prosecution mainly on the evidence of P. Ws. 3, 4 and 9 regarding the identification of the petitioners as the culprits who had committed dacoity, the evidence with regard to the suspicious movements of the petitioners when they were caught in the vicinity and the recoveries of a number of articles removed during the commission of the offence of dacoity from them. It has been submitted on behalf of some of the petitioners who have been represented in this Court that the evidence with regard to identification of the petitioners by P. Ws. 3, 4 and 9 was not worthy of credence and the recoveries of articles removed in the course of dacoity had not been established by clear and acceptable evidence and the articles had not been identified by P. Ws. 3 and 4 as belonging to them.

6. It is not disputed and it cannot be in view of the evidence on record that a dacoity had been committed in the house of P. Ws. 3 and 4. All the petitioners had been caught on the day following the night of occurrence, two of them, namely, the petitioners Birendra (since dead) and Ananta Charan Das, near the car which had been parked and the others were caught and apprehended not far away from the place of occurrence. As it appears, unfortunately for the culprits and fortunately for the victims and the investigating agency, one tyre of the Ambassador car in which the culprits were to move away got flat for which they could be caught and detained. The trial and the appellate Courts have found in their judgments on the basis of the evidence as to where and under what circumstances, the petitioners were caught and detained and it would nit be necessary for this Court in its revisional jurisdiction to catalogue and scan the concunent findings recorded by the, Courts below in this regard.

7. I find that the materials placed before the trial Court did not warrant a conviction of any of the petitioners for the charge of 'lurking house-breaking' (as mentioned in the charge) punishable under Section 457 of the Code. It is not understood what was meant by the trial Court when it used the expression 'lurking house-breaking' in the charge. There was no evidence that the petitioners had taken precautions to conceal their presence after committing house-trespass. There was no evidence either to establish that the petitioners or any of them had entered the house of P. W. 4 in any of the six ways mentioned in Section 445 of the Code defining 'house-breaking'. Merely because of their presence at the residence of P. W. 4 during the night, it could not be assumed that the petitioners had committed either an offence of lurking house-trespass or house-breaking. In the absence of legal evidence that an accused person had taken precautions to conceal his presence after committing house-trespass, it could not be said that he had committed lurking house-trespass during the night. Unless there is evidence that an accused person had committed house-breaking in any of the six ways mentioned in Section 445 of the Code, he cannot be convicted for house-breaking. The order of conviction and sentences passed against each of the petitioners under Section 457 of the Code must, therefore, be set aside.

8. Coming to the charge of dacoity, there was, in the first place, the evidence of P. Ws. 3, 4 and 9 identifying the petitioners as the culprits. My attention has been invited to some extracts from the evidence of P. Ws. 3 and 4 wherein they had stated that they had not marked as to whether any of the culprits had moustache and other particular features of their faces for which they had been able to identify and it has been (Submitted that there had been delay in the test ident fixation proceedings. It has also been brought to my notice that in the first information report it had not, in terms, been stated by P. W. 4 that electric lights were burning in the house for which the petitioners could be identified. But besides the evidence of P. W. 4, there was the evidence of P. W. 3 that electric lights were burning in the verandah as well as in the room from which the culprits could be identified and this was also the evidence of P. W. 9. No undue delay had been caused for holding the test identification parade as the occurrence had taken place during the night of July 8/9, 1981 and the test identification parade had been conductei by the Executive Magistrate (P. W. 18) on July 28, 1981. At the test identification parade, P. Ws. 3 and 4 had identified all the petitioners while P. W. 9 had identified the petitioners Raju Ratha, Purna Naik, Sansari Naik, Dillip Naik and Bijini alias Bijaya Kumar Patnaik. In their evidence, these three witnesses had identified the same persons whom they had identified at the test identification parade. The evidence of identification given by the witnesses in the Court is substantive evidence. Such evidence gets corroboration from the identification of the culprits at the test identification parade. Some descriptions and features of the culprits had been given by P. W. 4 in the first information report itself. He had also given evidence about the features of the culprits in his evidence in the Court. It had not been shown by the defence that the descriptions of the culprits given by P.W. 4 in the Court did not tally with those mentioned in the first information report. Merely because it had not been possible for P. Ws. 3 and 4 to say as to how many of the culprits had moustaches or to describe in details in their cross-examination about the particulars of the faces of the culprits, the evidence if identification of the culprits by P. Ws. 3 and 4 was not to be brushed aside Both P. Ws. 3 and 4 had ascribed particular acts committed by the petitioners. The trial and the appellate Courts had carefully considered their evidence and that of P.W. 9. The appellate Court did not place reliance on the evidence of P. Ws. 3 and 4 with regard to identification of three of the petitioners, namely, Birendra Kumar Patnaik (dead), Ananta Charan Das and Panalal Shaw as the evidence indicated that P. Ws. 3 and 4 had an occasion to see them at the police station prior to the test identification parade and it correctly concluded that in these circumstances, the evidence of identification of these three petitioners by P. Ws. 3 and 4 could not be relied on.

9. The petitioners Bijini alias Bijay Kumar Patnaik and Sansari Naik had properly been identified in the Court by P. Ws. 3, 4 and 9 and these witnesses had identified them at the test identification parade. The same three witnesses had identified the petitioner Raju Ratha in the Court and at the test identification parade. The petitioners Purna Naik, Sudhakar alias Nekuri Naik, Suresh Naik and Dilip Naik had properly been identified by P. Ws. 3 and 4 to be the culprits in the Court and at the test identification parade. The trial and the appellate Courts have relied on the evidence of identification of seven of the petitioners, namely, Bijini alias Bijaya Kumar Patnaik,Raju Ratha,Purna Naik, Sudhakar alias Nekuri Naik, Suresh Naik, Sansari Naik and Dilip Naik. Even if the evidence of P. W. 9 is discarded because he had not been named by the Investigating Officer to be one of the identifying persons in his application but P. W. 9 had identified some of the suspects at the test identification parade, there was the clear, cogent and acceptable evidence of P. Ws, 3 and 4 with regard to the identification of the petitioners other than the petitioners Birendra, Ananta and Panalal.

10. Corning to the recoveries, it would be noticed from the evidence that M. O. XVIII had been recovered from the person of the deceased-petitioner Birendra Kumar Patnaik and seized as per the seizure list, Ext. 15, by the Investigating Officer in the presence of P. Ws. 13 and 14. Cash and M. Os. XXX and XXXIV had been recovered from the possession of the petitioner Ananta Charan Das in the presence of P. Ws. 13 and 14 by the Investigating Officer and seized as per Ext. 16, the seizure list. From the person of the petitioner Panalal Shaw were recovered M. Os. XXXI and XXXII in the presence of P. Ws. 13 and 14 by the Investigating Officer and seized as per the seizure list, Ext. 17. M. O. XXIX was recovered and seized as per the seizure list, Ext. 11, from the possession of the petitioner Bijini alias Bijay Kumar Patnaik, as would appear from the evidence of P. Ws. 12 and 20. The petitioner Raju Rat ha was found to be in possession of M. Os. VII, XII, XXVII, XLVII and XLIX which were seized as per Ext. 12, as testified by P. Ws. 12 and 20. From the possession of the petitioner Sansari Naik, M. Os. XII, XXII and XXIII were recovered and seized as per Ext, 9, the seizure list, which could be seen from the evidence of P. Ws. 12 and 20. The petitioner Dilip Naik was in possession of M. Os. XXI, XXIV and XXV which were seized from his possession as per Ext. 10, the seizure list and in this regard, there was the evidence of P. W. 12, the witness to the seizure. The petitioner Purna Naik was in possession of M. Os. XVI, XVII, XIX, XXVI, XXVIII and XXXIII which had been kept covered in a napkin (M. O. LIII) and these articles had been seized from his possession by the Investigating Officer in the presence of P. W. 17 as per the seizure list, Ext. 20. The petitioner Sudhakar was in possession of M.O. LIV which had been recovered and seized in the presence of P. W. 17 as per the seizure list, Ext. 21. The petitioner Suresh was in possession of M: Os. XIII, XIV and XV which had been recovered and seized from his possession as per the seizure list, Ext. 19, by the Investigating Officer in the presence of P. W. 16. The witnesses to the recoveries and seizures had identified the articles which had been seized from the petitioners. The articles other than cash had properly been identified by P. Ws. 3 and 4 in the Court as belonging to them which had been removed by the culprits during the commission of dacoity. These two witnesses had also identified the ornaments and other articles at a test identification parade. The Court of trial and the appellate Court have accepted their evidence in this regard and I see no reason to take a different view. The petitioners had denied the recoveries of the articles removed during the commission of dacoity from their persons. They had not offered any explanation as to how they came by these properties. All the recoveries and seizures had been made on July 9, 1981, immediately after the commission of dacoity at the residence of P. Ws. 3 and 4.

11. Section 114 of the Indian Evidence Act provides, as mentioned in Illustration (a), that a person 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. The presumption from recent possession of stolen property is an optional presumption of fact. It is open to the Court to convict an accused by drawing the presumption where the circumstances indicate that no other reasonable hypothesis except the guilty knowledge of the accused is open to the prosecution. The presumption permissible has to be read along with the important time factor. Before a presumption under Section 114, Illustration (a) can arise, it must be proved that the articles found in possession of the accused have been stolen. In the instant case, there is no paucity of proof that the articles found in the possession of the petitioners bad been removed during the commission of dacoity at the residence of P. W. No.3 and 4 and the articles removed during commission of dacoity had been recovered from the petitioners immediately after the commission of dacoity. The presumption under Section 144 is not confined to cases of theft. A like inference may be raised in the case of murder accompanied by robbery, in the case of burglary or in a case of dacoity. If some persons are found to be in possession of articles removed during the commission of dacoity immediately thereafter and they fail to explain their possession and take a false plea of denial of recovery of properties from their possession, which cannot be accepted in view of a large body of evidence from the side of the prosecution, a presumption can legally and legitimately be raised that they were the authors of the crime of dacoity. In this connection, reference may be made to the principles laid down by the Supreme Court in AIR 1971 Supreme Court 196: 1971 Cr. L. J. 260 Shivappa and Ors. v. The State of Mysore.

12. Keeping in mind the principles laid down by the Supreme Court, the unassailable evidence with regard to the recoveries of articles, properly identified by P. Ws. 3 and 4 as belonging to them, from the petitioners after a very short gap of time and on the day following the night of occurrence itself would justify a presumption under Section 114 of the Evidence Act that the petitioners had committed dacoity at the residence of P. Ws. 3 and 4. As earlier indicated, seven of the petitioners had properly been identified to be the culprits. The evidence of identification, of the petitioners Birendra Kumar Patnaik (dead), Anata Charan Das and Panalal Shaw by P. Ws. 3 and 4 had, no doubt, been discarded by the appellate Court, but the recoveries of articles removed duting the commission of dacoity would, on the facts and in the circumstances of the case, sufficiently bring home the charge of dacoity to them. As regards the other petitioners, besides the evidence of identification as the culprits, there was the clear and acceptable evidence of recoveries of articles removed during the commission of dacoity from their possession.

13. Regard being had to the aforesaid items of evidence which had properly been discussed by the Courts below and accepted, the petitioners must be held to have committed dacoity at the residence of P. Ws. 3 and 4.

14. It has been submitted before me by the learned counsel appearing for some of the petitioners that the sentences have been severe in the circumstances of the case. The sentence passed against each of the petitioners to undergo rigorous imprisonment for a period of five years under Section 395 of the Code cannot be said to be severe. The sentences of fines against the petitioners need not have been imposed.

15. In the result, the revisions are allowed in part. The order of conviction and sentences passed against each of the petitioners under Section 457 of the Indian Penal Code is set aside. The order of conviction passed against each of the petitioners and the substantive terms of imprisonment passed against them under Section 395 of the Code are maintained. The sentence of fine imposed against each of the petitioners under Section 395 of the Code is set aside. Criminal Revision No. 120 of 1983, in so far as it relates to the deceased Birendra Kumar Patnaik, abates. The Criminal Revisions are accordingly disposed of.


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