G.B. Patnaik, J.
1. This appeal is directed against the order of the Assistant Sessions Judge, Atigul, in Sessions Trial No. 18-A of 1981, who has acquitted the accused persons of the charges under Sections 395 and 397, I..P.C. This appeal has been admitted against Nenkuri alias Lokanath Naik, Alekha Naik alias Sahu, Judhistir Naik and Subudhi Naik and has been dismissed as against others.
2. The Assistant Sessions Judge framed charges against six known accused persons and two others under Sections 395 and 397, I.P.C. on the allegation that they committed dacoity in the house of Pati Sahu at night on 25-5-1981 in village Kusumghati and framed charge against accused Sadasiva Sahu under Section 412, Penal Code. By the impugned judgment, the learned Judge acquitted accused Sadasiva of the charge under Section 412, Penal Code, for which he stood trial; acquitted accused Biranchi of the charges under Sections 395 and 397; and acquitted accused Nenkuri alias Lokanath, Alekha, Judhistir, Subudhi and Kulamani alias Kulha of the charges under Sections 395 and 397, but convicted them under Section 412, Penal Code and sentenced them to undergo rigorous imprisonment for two years. I am, therefore, concerned in this appeal with the legality of the order of acquittal of accused Nenkuri alias Lokanath, Alekha, Judhistir, and Subudhi of the charges under Sections 395 and 397, Penal Code.
2A. According to the prosecution case, on 25-5-1981, in village Kusumghati, the informant Pati Sahu (P. W. 1), his wife, Rebati (P. W. 2) and father Bichhanda (P. W. 3) went to bed after finishing their night meals at 8 p.m. The front door was closed. At midnight, P. W. 1 heard his father calling him by his name and he woke up. Suddenly he found eight to ten dacoits armed with weapons entered inside his house. They were focussing torchlights and one of them dealt Thenga blows on his father who left the place immediately. Another dacoit asked him as to where he had kept the teak timbers. When P. W. 1 denied to have brought any timber, the dacoits dealt two blows on his person and pointed out a knife at him. The dacoits then tied him and his two field servants (P. Ws. 4 and 5) and one of the dacoits snatched away a pair of gold Noli and a pair of gold Fasia and one gold Nakadandi from the person of his wife (P. W. 2) causing injuries to her ear-lobes. They also took away cash of Rs. 6000/-, four sarees and several other articles and two torchlights belonging to the informant. Information was lodged before the Officer-in-charge, Jarpada Police Station on the next morning. P. W. 15 drew up the F.I.R. (Ext. 18) and after registering the case took up investigation. After completion of the investigation, charge-sheet was filed and ultimately the accused persons stood their trial.
3. Though the State has preferred the appeal against the order of acquittal of the respondents, but none of the respondents have preferred any appeal against their conviction for the charge under Section 412, I.P.C.
4. Respondent Nenkuri alias Lokanath was arrested by P. W. 15 on 27-5-1981 and while in custody gave recovery of one stolen torch (M.O.V.) which was seized under seizure list (Ext. 5). Respondent Alekha was arrested on 28-5-1981 and led the police to the recovery of gold ornaments (M.Os. IX and X) from the house of the co-accused Sadasiva and M.O.I. from his own house. The ornaments were seized under seizure list (Ext. 10) and M.O.I. was seized under seizure list (Ext. 3). Respondent 3 was arrested on 31-5-1981 and while in custody led to the recovery of M.O.I. IV and some other clothes seized under Ext. 11. Respondent Subudhi Naik was arrested on 31-5-1981 and while in custody led the police to give recovery of M.O. III, a printed saree, which was seized under seizure list (Ext. 4). The prosecution case was sought to be established through the eyewitnesses (P. Ws. 1 to 5), the seizure witnesses (P. Ws.6, 8, 9 and 11), thedoctor(P. W.7), the Magistrate who conducted the T. 1. Parade (P. W. 12), the Finger-Print Expert (P. W. 13), the Chemical Examiner (P. W. 14) and the Investigating Officer (P. W. 15). P. W. 10 had seen the accused persons sometime earlier on the date of occurrence and his evidence has absolutely no relevance in establishing the prosecution case. On the basis of the medical evidence of the doctor who found injuries on P. Ws. 1, 2, and 3, the oral statements of P. Ws. 1 and 3 and the seizures made by P. W. 15, the learned Assistant Sessions Judge came to the conclusion that the dacoity in question had been committed in the house of P. W.1 on the night of occurrence. Thereafter, the learned Judge began considering the evidence to find out as to who were the dacoits. In this connection, the T. I. Parade that was conducted of the suspects on 17-6-1981 by P. W. 12 is of great importance. The T. I. Parade report has been exhibited as Ext. 14. P. W. 1 identified all the respondents in the T. I. Parade. P. W, 5 identified respondents 1, 2 and 3 and P. W. 4 identified respondents 2 and 3 in the said T. I. Parade. The evidence of P. W. 12 shows that he had observed all the formalities when he conducted the T. 1. Parade. The learned Assistant Sessions Judge has not given any importance to the said Test Identification Parade solely on the ground that the report does not show as to the manner of the overt acts of the accused for which the witnesses were able to identify them. In my opinion, the ground is wholly untenable and the test identification cannot be thrown away on that score.
5. Coming to their substantive evidence in Court, I find P. W. 1 is the informant, P. W. 2 is his wife and P. W. 3 is his father. P. Ws. 4 and 5 are the two field servants. P. W. 1 identified accused Nankuri, Subudhi, Judhistir and Alekh in Court apart from the other two accused against whom the present appeal has not been directed. He also in his evidence indicated as to the overt acts committed by each of the accused persons. Nothing substantial has been brought out in his cross-examination so as to discredit him in any manner. His substantive evidence in Court identifying all the accused-respondents is corroborated by his earlier identification in the T. I. Parade of all the respondents. P. W. 2 though identified the respondents in her evidence in trial, but as she was not one of the identifying witnesses in the T. I. Parade, the learned trial Judge has not placed any reliance on her identification evidence in Court. Similarly, though P. W. 3 was also able to identify accused Judhistir in Court, as said Judhistir had given him a lathi blow, but the learned Trial & Judge did not rely on his statement since he was also not one of the witnesses who had identified the accused persons in the T.I. Parade. P. W. 4 was a Halia who was sleeping in the house of the informant at the relevant time. In Court, he had identified respondents Nos. 2 and 3 and he had also identified those two respondents in the T. I. Parade. His evidence has been discarded only on the ground that he stated in the cross-examination that accused Kulamani was also in the T. I. Parade though factually Kulamani was never there in the T. 1. Parade. In my opinion, the learned Trial Judge was not at all justified in ignoring his evidence on this score.
6. P. W. 5 who was also another Halia, identified respondents Nenkuri, Judhistir and Alekha in Court. He had also identified those accused persons in the T. I. Parade which had been conducted by P. W. 12. His evidence has been discarded on the ground that in Court he stated that he had identified also accused 1 and 6 in the T. I. Parade though they had not actually been put in the T. I. Parade. In my opinion, on this score, the substantive evidence of P. W. 5 which is amply corroborated by his earlier identification in the T. I. Parade so far as respondents 1, 2 and 3 are concerned, cannot be rejected by the Court. Thus, in my opinion, all the respondents have been duly identified by P. W.I, both in the test identification parade as well as in the Court; respondents 2 and 3 had been identified by P. W. 4 both in Court and in the Test Identification Parade and respondents 1, 2 and 3 have been identified by P. W. 5 both in the Court as well as in the Test Identification Parade.
7. On discussion of the evidence, of P. W. 15, who had seized different articles on being led by the accused persons while in custody and those articles being duly identified by the inmates of the house to be their property which had been stolen on the night of occurrence by the dacoits, the learned Assistant Sessions Judge came to the conclusion that accused Nenkuri had received the stolen torchlight (M.O.V.) belonging to P. W. 1; accused Alekha was in possession of M. Os. 1 and IX; accused Judhistir was in possession of M.O. IV and accused Subudhi was in possession of M. O. III. But relying on the decision of the Supreme Court in the case of Amar Singh v. State of M. P. : 1982CriLJ610 , the learned Assistant Sessions Judge had convicted them only under Section 412, Penal Code. In my opinion, the learned Assistant Sessions Judge committed gross error in so doing. The decision on which the learned Trial Judge placed reliance has not made any discussion nor any legal proposition has been laid down. In the facts and circumstances of that case, the Supreme Court had convicted the accused persons under 412, I.P.C. What were the facts and circumstances are also not apparent from the said judgment. In that view of the matter, the learned Assistant Sessions Judge was not justified in convicting the respondents under Section 412, and acquitting them of the charge under Section 395, I.P.C.
8. Under Section 114 of the Evidence Act, the Court may presume existence of any fact which it thinks is likely to have happened, regard being had to common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (a) to the said section says that the Court may presume that the man who is in the 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 this particular case, the goods recovered from the respondents have been proved to be the stolen properties and they have been recovered very soon after the occurrence. Therefore, under Section 114 of the Evidence Act, the Court may presume the respondents to be thieves themselves. The law on the subject has been well discussed in the case of Shivappa v. State of Mysore : (1970)IILLJ129SC . In that case, the learned Counsel appearing for the accused contended before the Supreme Court that the circumstances under which one presumption or the other may be drawn under Section 114 of the Evidence Act had not been stated by law, and therefore, it was necessary always to start with the lesser presumption and draw the higher presumption only when there was some other evidence to show the complicity of the p,erson in the crime itself. Rejecting the said submission, Hidayatullah, C.J., speaking for the Court, observed:
In our opinion, the law advocated by Mr. Chari is not correct. If there is other evidence to connect an accused with the crime itself, however small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime. There is then no question of presumption. The evidence strengthens the other evidence already against him. It is only when the accused cannot be connected with the crime except by reason of possession of the fruits of crime that the presumption may be drawn. In what circumstances the one presumption or the other may be drawn, it is not necessary to state categorically in this case. It all depends upon the circumstances under which the discovery of the fruits of crime are made with a particular accused. It has been stated on more than one occasion that if the gap of time is too large, the presumption that the accused was concerned with the crime itself gets weakened. The presumption is stronger when the discovery of the fruits of crime is made immediately after the crime is committed. The reason is obvious....
In my opinion, the conclusion of the learned Assistant Sessions Judge runs contrary to the law laid down by the Supreme Court in the aforesaid case and taking into consideration the fact that the stolen goods were recovered from the possession of the appellants very soon after the occurrence, a presumption must be drawn that they are the thieves themselves. But in this case, the Court is not very much called upon to rely on the presumption, since I have already found that the substantive evidence of P. Ws. 1, 4 and 5 implicates the respondents in the commission of the dacoity and this evidence gets fully corroborated from the fact of recovery of the stolen articles from the possession of the respondents which were duly identified by the inmates of the house to be the stolen properties.
9. I would then examine another piece of incriminating material, which is the confessional statement of accused Nenkuri. The said confessional statement has been exhibited as Ext. 16 and the learned Magistrate who recorded the confession has been examined as P. W. 12. The learned Assistant Sessions Judge has rejected the said confessional statement (Ext. 16) on the ground that the requirements of Section 164 of the Cr. P.C. have not been complied with, inasmuch as the statement does not point out the warning against making of the confession, nor does it show that the confession was made voluntarily and further that there was no sufficient time given to the person making the confession to have a cool reflection. I have gone through the confessional statement (Ext. 16) and in my view the learned Assistant Sessions Judge was justified in rejecting the confession since the requirements of Section 164 of the Cr. P. C. have not been complied with. Accused Nenkuri, however, in his statement under Section 313 of the Cr. P. C. admitted the guilt and it is not known as to why the learned Assistant Sessions Judge has not considered that at all.
10. On the substantive evidence of P. Ws. 1, 4 and 5 and the corroboration to the same being received from the fact of seizure of stolen articles from the possession of the respondents soon after the occurrence, and in view of the finding of the learned Assistant Sessions Judge that a dacoity did take place in the house of the informant, the conclusion is irresistible that the prosecution has been able to establish the charge under Section 395, I. P. C. against the respondents along with two others, not known. So far as the charge under Section 397, I.P.C. is concerned, I am of the opinion that the said charge has not been established by the prosecution. Consequently, the order of acquittal of the respondents of the said charge by the Assistant Sessions Judge is not to be assailed.
11. In the result, therefore, I convict the accused-respondents Nenkuri alias Lokanath Naik, Alekha Naik alias Sahu, Judhistir Naik and Subudhi Naik under Section 395, I.P.C. and sentence each of them to undergo rigorous imprisonment for a period of five years. It is made clear that the conviction of the above accused-respondents under Section 412, I.P.C. made by the learned Assistant Sessions Judge, is altered to one under Section 395, I.P.C. Obviously, therefore, the sentence they have already undergone for being convicted under Section 412, I.P.C. shall be taken into account.
12. The Government Appeal is accordingly allowed.