HIGH COURT OF ORISSA: CUTTACK CRIMINAL APPEAL No.275 of 2006 From the judgment and order dated 11.05.2006 passed by Sri S.K.Mohapatra, C.J.M.-cum-Asst. Sessions Judge, Nabarangpur in C.T. Case No. 45 of 2005. ---------- Hari Harijan ………… Appellant -versus- State of Orissa ………… Respondent For Appellant : M/s. Anirudha Das & Associates For Respondent : Addl. Govt. Advocate P R E S E N T: THE HON’BLE MR. JUSTICE B.K.MISRA ---------------------------------------------------------------------------------------------- Date of Judgment: 15.11.2011 ------------------------------------------------------------------------------------------------------- B.K. Misra, J. The appellant having been convicted and sentenced to undergo rigorous imprisonment R.I. for eight years and to pay fine of Rs.5,000/- in default to undergo R.I. for a further period of one year for the offence under Section 395 of the Indian Penal Code (for short the ‘I.P.C.’) by the learned Asst. Sessions Judge-cum-C.J.M., Nabarangpur in C.T. No. 45 of 2005, has preferred this appeal. A.F.R. 2 2. The case of the prosecution is that on 7.2.2005 around 8.00 P.M. the informant Balaram Bisoi @ Buto (P.W.1) and his family members after finishing their supper returned to bed. According to the F.I.R. story the informant (P.W.1) slept on the verandah of his house whereas his wife and daughter slept inside the “CHOUPADI”. It is alleged that around 12.00 midnight some unknown culprits entered into the house of P.W.1 by opening the back doors of his house and when focused the torch light on the face of informant (P.W.1) he woke up. It is further alleged that two persons on the point of knife directed P.W.1 to keep silent and remained on guard whereas three other persons entered inside the “CHOUPADI” and woke up Tulasa Bisoi (P.W.2), who is the wife of P.W.1 and took away her nose flower and they also by terrorizing Parvati (P.W.3), the eldest daughter of P.W.1 took away her ear rings. Those three persons remained on guard of P.Ws. 2 and 3 and at that time five other persons opened the lock of another room and from the “MANDIA DRUM” took away ‘Gini Mali’, ‘Labangakodhi’ ‘Khasu Mali’ and also cash of Rs.5,000/- which had been kept in an earthern pot inside the “ DHANA DOLI”. It is alleged that P.Ws. 2 and 3 were kept confined by the five culprits inside “GADIA GHARA”. After the miscreants left the spot, P.W.1 reported the matter to his ‘Dada’ (Uncle) Madhab Bisoi, (P.W.4). The F.I.R. reveals that the unknown culprits 3 committed dacoity of cash and gold ornaments worth around Rs.17,000/- and they had covered their faces with towel and mufflers. The F.I.R. further disclosed that the miscreants were aged in between 25 to 30 years and had put on pant, shirt and shoe. Information about the occurrence was lodged in writing by P.W.1 before the O.I.C., Tentulikhunti Police Station vide Ext.1. Police on receipt of the said information took up investigation of the case and on completion of investigation placed charge sheet against 15 (fifteen) accused persons including the present appellant under Section 395 of the I.P.C. to stand their trial. I may mention here that out of the fifteen charge-sheeted accused persons since accused Bijay Behera, Kurupati Jani, Tunu Harijan, Jaganath Bagh, Bhola Bagh, Ramesh Bagh, Damburu Bagh, Raten Bagh and Gajendra Hial @ Majhi absconded their case was split up and the trial proceeded against the present appellant Hari Harijan besides accused Lalit Harijan @ Bandaka, Bipin Hial, Trinath Amanatya @ Bonda, Trinath Harijan, Rama Harijan and Ramesh Bagh. 3. The learned Asst. Sessions Judge-cum-C.J.M., Nawarangpore since did not find any legal evidence against accused Lalit Harijan @ Bandaka, Bipin Hial, Trinath Amanatya @ Bonda, Trinath Harijan, Rama Harijan and Ramesh Bagh under Section 395 4 I.P.C. acquitted them of the said charge under Section 235 (1) of the Cr.P.C. Since the learned Asst. Sessions Judge found sufficient evidence on record against the present appellant therefore while convicting the present appellant under Section 395 of the I.P.C. passed the impugned sentences which is under challenge in this appeal. 4. The plea of the appellant is that of a complete denial of the occurrence and it is his further plea that he has been implicated in a false case. 5. The prosecution in order to bring home the guilt of the accused persons had examined 9 witnesses in all and of them P.W.1 is the informant, P.Ws.2 & 3 are the occurrence witnesses, P.W.4 is a post occurrence witness, who is the uncle (Dada) of P.W.1. P.W.5 is another witness for the prosecution to speak about the recovery of ‘Sorisia Mali’, ‘Khasu Mali’ and ‘Naka Phula’ as per the disclosure statement of the present appellant, P.W.6 is a seizure witness, P.W.7 is the goldsmith who took weighment of the gold ornaments. P.W.8 is the I.O. P.W.9 was the Judicial Magistrate First Class, Nawarangpore who conducted T.I. Parade in respect of the suspects as well as the stolen gold ornaments. The appellant declined to examine any witness in his defence. 5 6. The learned court below formulated the point for consideration and after examining the evidence on record passed the impugned sentences. 7. The learned counsel for the appellant in course of his argument while taking me through the evidence on record and the materials produced before the Court contended that when there was no evidence worth the name to connect the appellant in commission of dacoity along with others in the house of P.W.1 on the night of 7.2.2005, the Court should not have placed reliance on the recovery of the gold ornaments as the foundation for establishing the culpability of the appellant in commission of the alleged dacoity. 8. The learned counsel for the State on the other hand contended that the learned trial court on proper appreciation of the evidence on record and by applying the position of law had rightly convicted the appellant under Section 395 of the I.P.C. and therefore the order of conviction and sentences should not be disturbed. 9. Before going to the detail analysis of the evidence on record, I may mention here that the prosecution had tried to establish its case through the evidence of P.Ws.2 & 3, who were inmates of the house where the alleged dacoity took place on the night of 7.2.2005 and also through the evidence of P.W.9, the then learned Judicial Magistrate First Class, Nawarangpore in whose 6 presence P.W. 3 identified the present appellant as one of the dacoit, who had participated in the alleged crime. Besides that the prosecution also heavily relied upon the identification of the stolen gold ornaments in the T.I. Parade before P.W.9. which were seized as per the disclosure statement of the present appellant. 10. I have considered the rival submissions made by the learned counsel for the parties and perused the record in C.T. Case No. 45 of 2005. In the instant case the prosecution primarily relied upon the evidence of P.Ws.2 and 3, the family members of the informant P.W.1 namely, his wife and daughter with regard to the identification of the present appellant by P.W.3 in the T.I. parade which was held in presence of the learned Judicial Magistrate First Class, Nawarangpore, P.W.9 inside Nawarangpore jail and also the identification of accused Trinath Amanatya @ Bonda by P.W.2 in the said T.I. parade. I may mention here that the said accused Trinath Amanatya @ Bonda has been acquitted along with other accused persons namely, Trinath Harijan, Ramesh Bag, Lalita Harijan @ Bandaka, Bipin Hial and Rama Harijan by the learned Asst. Sessions Judge, Nawarangpore in C.T. Case No. 45 of 2005 as the prosecution failed to establish its case against them under Section 395 of the I.P.C. The learned Asst. Sessions Judge with regard to the identification of the present appellant by P.W.3 disbelieved the said 7 fact for the reasons assigned in the body of the judgment in para-6 and I find such conclusion of the learned Court is based on proper appreciation of evidence and reasoning assigned thereof. According to the F.I.R. story which was lodged immediately after the occurrence by P.W.1 the criminals who entered inside the house of P.W.1 on the night of 7.2.2005 to commit dacoity had covered their faces with towel and muffler. So if we believe this fact which has been mentioned in the F.I.R. by P.W.1 who is the husband of P.W.2 and father of P.W.3, it appears as a myth as to how P.Ws. 2 and 3 could see the dacoits who committed dacoity on the night of 7.2.2005 in respect of the gold ornaments as well as cash from their house. It is also seen from the evidence of P.W.3 in her cross-examination in para-7 that all the dacoits had covered their faces with towel and they had also covered their heads. In view of such evidence of P.W.3 one of the identifying witness in her cross-examination her evidence in examination of chief that she identified the present appellant in the T.I. parade cannot at all be believed for a moment. Therefore, the evidence of P.W.9 the learned Magistrate that in the T.I. parade in respect of suspects which was held on 3.3.2005 at Nawarangpore Sub-jail where P.Ws. 2 and 3 identified the present appellant and accused Trinath Amanatya @ Bonda and the T.I. parade report Ext. 11 cannot be of any assistance to the prosecution. It is also the 8 evidence of P.W.2 that much prior to the holding of the T.I. parade she was called to Tentulikhunti Police Station where she was asked to identify accused Trinath Amanatya in the police lockup. Thus, if we believe this evidence of P.W.2 that Trinath Amanatya and some other dacoits who were in the Police lockup were shown to her, the T.I. parade which was held for identification of the suspects looses its significance and evidentiary value. This aspect has been vividly dealt with by the learned Asst. Sessions Judge in the judgment. Thus, there is no direct evidence on record to show the involvement of the present appellant in the dacoity which was allegedly committed in the house of P.W.1 on the night of 7.2.2005. 11. The prosecution heavily relied upon the disclosure statement of the present appellant and recovery of ‘KHASU MALI’, ‘SORISIA MALI’, ‘CHUDIA NAKA PHULA’, another gold ‘NAKA PHULA’, one gold ‘DAMBURU KANTHI’, a pair of earrings (KANA PHULA), another pair of gold ear rings (KANA PHULA), three silver coins and cash of Rs.972/- from under the mattress of the mother of present appellant at his instance. Besides that the prosecution also relied upon the identification of the stolen gold ornaments in a T.I. parade held in presence of the learned Judicial Magistrate First Class, Nawarangpore P.W.9 on 4.3.2005 where the identifying witnesses P.Ws.2 and 3 correctly identified the ornaments which the dacoits 9 looted from their house on the night of 7.2.2005. The learned Asst. Sessions Judge believed the evidence of P.Ws. 2, 3, 9 and also the I.O. P.W.8 who effected such seizure of the gold ornaments as per the disclosure statement of the present appellant and came to the conclusion that when the suspected gold ornaments were seized from under the mattress of the mother of the appellant from his house as per his disclosure statement and when the appellant failed to account for such possession of the stolen articles, by applying the provisions of Section 114(a) of the Evidence Act, came to the conclusion that it was the appellant who was one of the dacoits who committed dacoity in the house of the informant on the night of the occurrence i.e. 7.2.2005. I have very carefully gone through the evidence of P.W.1 the informant, P.Ws. 2 and 3, P.W.8 the I.O. and P.W.9 the learned Judicial Magistrate in whose presence T.I. parade in respect of the suspected stolen gold ornaments was held. One peculiar fact which has come to the light that though P.W.1 the informant in whose house dacoity was committed in respect of the gold ornaments and cash and even though P.W.1 speaks of the recovery of the said stolen gold ornaments and cash which were given in zima vide Ext.2, Zimanama but he was not an identifying witness to the T.I. parade. P.W.8 the I.O. of this case deposed that while in custody, accused Hari Harijan made the disclosure statement which 10 he recorded under Section 27 of the Evidence Act and he has proved such statement of the present appellant as Ext.8. The evidence of P.W.8 also shows that at the instance of the present appellant he searched his house in presence of the witnesses and recovered one gold ‘Khasu Mali’, one gold ‘Sorisia Mali’, two numbers of nose flowers, one gold ‘NAKA PHULA’, one ‘KANTHI MALI’, four gold ‘KANA PHULA’, three silver coins and cash of Rs.972/- consisting of different denominations from under the mattress of the bed of his mother and prepared the seizure list i.e. Ext.3/2. Very surprisingly enough though P.W.1 is the informant of this case and dacoity was committed in his house on the night of 7.2.2005 in respect of the gold ornaments of his wife and daughter and also cash but he does not say anything about the T.I. parade which was held and he was not even an identifying witness. P.W.2 the identifying witness deposed that during investigation she had identified ‘KHASU MALI’, one ‘SORISIA MALI’, ‘KANA PHULA’ and ‘NAKA PHULA’ which were recovered by Police in the T.I. parade before the Magistrate. P.W.3 deposed that during investigation police recovered the stolen gold ornaments and she and her mother identified the stolen gold ornaments before the Magistrate. Very surprisingly enough the stolen gold ornaments which were given in zima of P.W.1 were never produced before the Court nor they were marked as materials objects 11 nor were shown to the witnesses P.Ws. 1, 2 and 3 during their evidence. In this respect the evidence of P.W.9, the learned Judicial Magistrate First Class cannot be over looked. P.W.9 deposed that the identifying witnesses namely, Parbati Bisoi and Tulsa Bisoi identified all the properties which were there on his table as stolen properties. I am to mention here that P.W.9 deposed that in respect of the seized gold ornaments he conducted the T.I. parade in his Chambers on 4.3.2005 and those were produced by the I.O. which he handed over to the Court Sub-Inspector around 11.30 A.M. to arrange for matching articles and the C.S.I. returned back to him at 4 P.M. with the stolen articles and other matching articles and he conducted the T.I. parade after 4 P.M. It is also seen from the evidence of P.W.9, the Magistrate that the identifying witnesses appeared before him around noon. So if the identifying witnesses were in Court premises on 4.3.2005 around noon time and the T.I. parade was held after 4 P.M. that day the possibility of the identifying witnesses seeing the alleged stolen properties which were handed over by P.W.9 to the Court Sub- Inspector for arranging matching items of such gold ornaments cannot be ruled out as the I.O. was also present that day in the Court premises. The evidence of P.W.9 also shows that the C.S.I. produced eight numbers of similar ornaments for each individual items of the properties which were mixed up with the suspected stolen property 12 and were placed in six rows i.e. one row for each individual item and the identifying witnesses were called one after the other to identify the stolen properties and the identifying witnesses P.Ws. 2 and 3 identified all the aforementioned properties to be stolen properties. In spite of such evidence of P.W.9 very unfortunately the learned Asst. Sessions Judge believed the identification of the stolen properties as a part of the booty in commission of the dacoity in the house of P.W.1 on the night of 7.2.2005 and relied upon the evidence of P.Ws.2, 3 and 9 on the identification of the suspected gold ornaments. Thus, the evidence of P.Ws. 2, 3 and 9 with regard to the identification of the stolen properties cannot be believed and therefore, the recovery of the gold ornaments as alleged by the prosecution pursuant to the disclosure statement of the present appellant and the presumption which has been drawn under Section 114(a) of the Evidence Act cannot stand to judicial scrutiny. 12. Apart from the above in the instant case the present appellant was arrested on 20.2.2005 and his statement under Section 27 of the Evidence Act was recorded by the I.O. that day and gold ornaments, silver coins and some cash were allegedly recovered from the house of the appellant that night. The disclosure statement which has been marked as Ext.5 shows that besides the present appellant his brother Tulu Harijan was also with him and they had 13 taken the gold ornaments and cash of Rs.1,000/- which fell to their share which they had concealed under the bed of his mother. Thus, the sole question remains to be decided whether adverse inference to be drawn against the present appellant merely on the basis of recoveries made on his disclosure statement. When the alleged offence was committed on the night of 7.2.2005 and recoveries were made on the disclosure statement of the appellant on 20.2.2005, there is no close proximity of time from the date of the incident. More so recovery is in respect of gold ornaments and cash which can be passed from one person to another without any difficulty. Therefore, under such given facts situation the inescapable conclusion that can be arrived that no presumption can be drawn against the present appellant under Section 114 illustration (a) of the Evidence Act. No adverse inference can be drawn on the basis of recoveries made on the disclosure statement of the present appellant to connect him with the commission of crime. In that context reliance can be placed on a decision of the Apex Court i.e. Criminal Appeal No. 937 of 2005 in the case of State of Rajasthan V. Talevar & Another which was decided on 17.6.2011 and in that context also reliance can also be placed in the case of Gulab Chand V. State of M.P., A.I.R. 1995 S.C. 1598, Sanwat Khan V. State of Rajasthan, A.I.R. 1956 S.C. 54, Tulsiram Kanu V. State, A.I.R. 1954 S.C. 1, Earabhadrappa V. State of 14 Karnataka, A.I.R. 1983 S.C. 446, Sanjay @ Kaka and others V. the State (NCT of Delhi), A.I.R. 2001 S.C. 979, Ronny Alias Ronald James Alwaris & Others V. State of Maharashtra, A.I.R. 1998 S.C. 1251, Baijur V. State of Madhya Pradesh, A.I.R. 1978 S.C. 522 and Mukund @ Kundu Mishra & another V. State of Madhya Pradesh, A.I.R. 1997 S.C. 2622. 13. A conspectus reading of the aforementioned decisions of the Apex Court, the law on the issue can be summarized to the effect that where only evidence against the accused is recovery of stolen properties, although the circumstances may indicate theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the crime. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof. 14. Thus, from the aforesaid discussion of the evidence on record and the legal point involved, the impugned order of conviction and sentences imposed on the present appellant cannot be allowed to stand and accordingly, the same are set aside. The appellant held not guilty for the offence under Section 395 of the I.P.C. and he be set at liberty forthwith. 15 Accordingly, the appeal stands allowed and the impugned order of conviction and sentences are set aside. …………………………. B.K.Misra,J. Orissa High Court, Cuttack The 15th November, 2011/Ks