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Allahabad High Court · body

1978 DIGILAW 758 (ALL)

Bibhuti v. State

1978-08-08

DEOKI NANDAN

body1978
Judgment Deoki Nandan, J. 1. THIS appeal by Bibhuti is directed against his conviction under Section 412 IPC and sentence of 5 years' rigorous imprisonment for the same. 2. THE appellant was committed for trial to the court of Sessions, Varanasi along with Murli, Sachan, Kartik, Sehasan and Harihar who were charged for the offence punishable under section 395 read with Section 397 IPC for having committed dacoity at the house of Lalji and for having used deadly weapons causing grievous hurt to Baijnath, Lalji, Nanku and Balkaran in the course of that dacoity in village Mathela on the night between the 6th and 7th November, 1970. THE appellant was charged for the offence punishable under section 412 IPC on account of having been found in possession of certain gold and silver ornaments of Mb. November, 1970. Murli, Sachan, Kartik, Sinhusan and Harihar were found to be not guilty of the offence punisnable under section 395 read with section 397 IPC and were acquitted, but the appellant was found guilty of the offence punishable under Section 412 IPC by the learned 11 Temporary Civil and Sessions Judge, Varanasi. The first contention raised by Mr. Keshav Sahai, learned counsel for the appellant, is that the learned Sessions Judge having disbelieved the witnesses with regard to the charge of dacoity against Murli, Sachan, Kartik, Sinhasan and Harihar, he could not convict the appellant on the same evidence. At any rate, the learned counsel argued, the evidence has to be looked into with a great deal of caution and the learned Sessions Judge was in error in having accepted the evidence of the very same witnesses, particularly, the Investigating Officer, for convicting the appellant. He further argued that the only material in support of the charge against the appellant was that relating to the recovery of the alleged stolen ornaments from a corner of the open roof of the appellants' house, which are said to have been recovered at the instance of Guari alias Gauri Nandan who was one of the accused along with the o hers in the dacoity case, but had died in the meanwhile, and, the case having abated as against him, the evidence of recovery may have been admissible as against him but was certainly not admissible as against the appellant. Thus, according to the learned counsel, the recovery memo (Ex. Thus, according to the learned counsel, the recovery memo (Ex. Ka-17) and the testimony of the Investigating Officer, PW 12, proving the recovery memo and the facts leading upto the recovery, are wholly inadmissible and irrelevant as against the appellant. The witnesses of recovery were not produced, with the result that there is no evidence in law to prove the recovery of the alleged stolen ornaments from the roof of the appellants' house. The evidence of identification of the ornaments said to have been recovered at the instance of Gauri, as being the ornaments whose possession was transferred by the commission of the dacoity is also, therefore, wholly irrelevant in so far as the appellant is concerned. Further, the learned counsel attacked the evidence of identification of the said ornaments as unworthy of credence on account of certain illegalities alleged to have been committed in the identification proceedings. 3. UNDER the circumstances, the first question which calls for determination in this case is whether the appellant had dishonestly received or retained the ornaments and had knowledge or reason to believe that their possession had been transferred by the commission of the dacoity. 4. ALTHOUGH the other accused charged for dacoity have been acquitted of the same, the learned counsel did not question before me the fact that a dacoity had been committed at the house of Lalji in village Mathela during the night between 6th and 7th November, 1970. The fact that certain ornaments were recovered by the police during the course of investigation into that dacoity cannot also be seriously disputed inasmuch as the ornaments have been in custody of the police. The fact that possession of these ornaments was transferred by the commission of the said dacoity is proved by the evidence of identification of the said ornaments. There were three identification witnesses, namely, Sri Lalji, Smt. Ram Dulari wife of Lalji and Smt. Malti Devi wife of Gopal, and all the three of them identified -all the ornaments correctly, vide Ex. Ka-11. These witnesses of identification also appeared in the court of Sessions, Lalji as PW 1, Smt. Ram Dulari as PW 5 and Smt. Malti Devi as PW 6 and proved that the ornaments belonged to them. Ka-11. These witnesses of identification also appeared in the court of Sessions, Lalji as PW 1, Smt. Ram Dulari as PW 5 and Smt. Malti Devi as PW 6 and proved that the ornaments belonged to them. After giving the details of the looted ornaments Lalji stated in his statement on oath that he saw them for the first time after the dacoity only in the presence of the Magistrate in the course of identification proceedings and did not see them during the intervening period. When asked about the details of the ornaments in his cross-examination he stood the test very well and categorically denied the suggestion that the ornaments had been shown to him or to his family members after the recovery by the police or that the ornaments with which they had been mixed were not similar. He also denied the defence suggestion that the ornaments did not belong to his house-hold. Smt. Ram Dulari PW 5, also stated in detail about the looting of ornaments and testified the fact that they had been taken away by the dacoits at the said dacoity. She also stated that she had seen the ornaments for the first time after the dacoity in the course of the identification proceedings and had not seen them in between. In her cross- examination, she also stood the test quite well. The learned counsel, however, laid some emphasis on her statement in the cross-examination to the effect that she did not remember who the strings had been tied to the ornaments in the course of the identification proceedings or that the strings had been tied to the ornaments belonging to her house-hold. She denied the suggestion that there were any labels on the ornaments and also the suggestion that the ornaments had been shown to her by the police or that she could identify the ornaments only because of the same. Smt. Malti Devi PW 6, also made a similar statement with regard to the identity of the ornaments and also stood the cross-examination well. Smt. Malti Devi PW 6, also made a similar statement with regard to the identity of the ornaments and also stood the cross-examination well. The part of her statement in the cross-examination, which was emphasis by the learned counsel was to the effect that the necklace was found broken at the time of the identification though it was not broken earlier it was strewn earlier but was not at the time of the identification ; that the ornaments which had been mixed up were similarly broken and unstrewn. She stated that she could recognise the ornaments because she saw mem in the house and used them. She then stated that string was tied to certain ornaments at the time of identification, that string was tied to some of the other ornaments with which they were mixed. Red string was tied to the ornaments. The stolen Hansli as well as the Hansli with which it was mixed up had a red string tied to them. Red string was tied to all the ornaments of her house and also to all the ornaments with which they were mixed. Having heard the learned counsel for the appellant I am fully satisfied that the ornaments alleged to have been recovered on 8th November, 1970 from the open roof of the appellants' house were in fact those which had been taken away by the commission of the dacoity committed in the house of Lalji. Learned counsel for the appellants could not say anything plausible on this point. The witnesses stood the test of cross-examination well and beyond vague suggestions thrown out to the witness, no irregularity in the identification proceedings could be made out and it is not possible to say that the ornaments in question were shown to the witness before the identification. The learned counsel laid great emphasis on the last sentence in the statement of Lalji (PW 1) under cross-examination, in which he denied the suggestion that the ornaments did not belong to his house hold, the actual words being "YAH BHAI KAHAN GALAT HA1 KI YEH ZEBART MERE GHAR KE NAHIN HAIN". The commission of the dacoity at the house of Lalji and the looting of the; ornaments therefrom was the context in which the question was put. The commission of the dacoity at the house of Lalji and the looting of the; ornaments therefrom was the context in which the question was put. It was not necessary for the prosecution to establish the ownership of each individual ornament as belonging to a particular member of the family of Lalji. I accordingly find that the prosecution has satisfactorily proved the fact that the ornaments recovered from the roof top of the appellants' house were those which had been looted in the course of the dacoity committed at the house of Lalji on the night between the 6th and 7th November, 1970 and, therefore, they were stolen property within the meaning of Section 410 IPC the possession whereof had been transferred by the commission of dacoity. 5. THE question which must now be determined are whether the appellant could be said to have dishonestly received or retained the said ornaments and knew or had reasons to believe the same to be stolen property or that the possession of the same had been transferred by the commission of dacoity. THE first point which arises for consideration in this context is whether the ornaments were in fact recovered from the appellants' possession. THE learned Assistant Govt. Advocate emphasised that the fact that the ornaments were recovered from the house of the appellant, cannot be disputed in face of the evidence of recovery, and, that being so, it follows that they were recovered from the appellants' possession. Now the recovery memo (Ex. Ka. 17) is signed by the appellant himself ; and in his statement (Ex. Ka 32) under Section 207-A (6)/ 364 Cr. P.C. before the committing Magistrate, the correctness of which was admitted by the statement in reply to the first question under Section 364 Cr. P.C. in the court of Session, the appellant stated in reply to the question whether the ornaments in question had been recovered from his possession on search being taken of his house on 8th November, 1970, which he was retaining with himself knowing that they were goods looted by dacoity, that all the things belonged to his house-hold and were not taken by dacoity, the exact words used by the appellant being "SAB SAMAN MERE GHAR RA HAI DACOITY KA NAHIN HAI". THE appellant positively admitted the correctness of the said statement in apply to the first question in his statement under Section 364 Cr. P.C. in the court of Sessions. This statement of the appellant clearly implies that the ornaments in question were recovered from his possession on search being taken of his house on 8th November, 1970 and that he was retaining them as his own and disputed the fact that they were looted ornaments. There is a statement in the recovery memo (Ex. Ka 17) attributed to the deceased Gauri alias Gauri Nandan, at whose instance the ornaments were recovered by the police, to the effect that the ornaments in question had been kept on the roof of the appellant's house at the place where they were found in consultation with the appellant and that the appellant had promised to pay their price the same evening after melting them. Considered by itself, the statement attributed to the deceased accused Gauri alias Gauri Nandan, may not amount to evidence of receiving or retention of ornaments by the appellant. Be that as it may, the learned counsel for the appellant emphasised that this statement was inadmissible in evidence as against the appellant, under Section 26 read with Section 27 of the Indian Evidence Act, and at any rate being the statement of a person in the position of an accomplice it cannot be of any value unless corroborated by other evidence. Under Section 30 of the Indian Evidence Act, when more persons than one are tried jointly for the same offence, and a confession made by one of such person affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as the person who made such confession. It has been stated before me that the accused Gauri is dead. THE title of Sessions Trial No. 43 of 1973 giving rise to the present appeal was; 'State v. Gauri'. It, therefore, appears that Gauri was tried along with the appellant. He is, however, reported to have died during the pendency of the trial. It is not disputed fey the learned counsel that the statement attributed to Gauri in the recovery Memo (Ex. It, therefore, appears that Gauri was tried along with the appellant. He is, however, reported to have died during the pendency of the trial. It is not disputed fey the learned counsel that the statement attributed to Gauri in the recovery Memo (Ex. Ka 17) which is signed by Gauri Nandan besides the appellant, was relevant and admissible as a confession against Gauri under Section 27 of the Indian Evidence Act. This statement was amply corroborated by the fact that the ornaments were recovered when the police searched the house of the appellant in pursuance thereof. It may be that there had been no final deal between the deceased Gauri and the appellant with regard to the ornaments before their recovery by the police on the 8th November, 1978, and in that sense the possession of the ornaments had in fact not been transferred to the appellant. As to the question whether the ornaments were in the appellants' possession it is noticeable that although they were recovered on the open roof of his house, yet they were concealed in such a manner as to prevent detection by a person who did not know about their existence at that place. Moreover, in the site-plan (Ex. Ka-18) there is a note, being note No. 1, based on the observations of the Investigating Officer, to the effect that the ornaments were recovered from the south eastern corner of the roof of the Kothart No. 1 of the appellant's house and were taken out by the accused (which is a reference to Gauri) from a heap of ashes and that there was no other means of reaching that place except by the staircase of the house. It follows that the ornaments could not have reached that place except on being taken by a person through the staircase of the appellant's house and that was not easily possible without the appellant's knowledge and consent. THE learned counsel for the appellant vehemently contended that the said note made by the Investigating Officer in the site plan (Ex. Ka-18) is not substantive evidence and is no evidence inasmuch as the Investigating Officer did not repeat in so many words, in his statement on oath, the contents of that note. THE learned counsel for the appellant vehemently contended that the said note made by the Investigating Officer in the site plan (Ex. Ka-18) is not substantive evidence and is no evidence inasmuch as the Investigating Officer did not repeat in so many words, in his statement on oath, the contents of that note. Now, while proving the siteplan the Investigating Officer Udai Pratap Singh (PW 12) stated, in his statement on oath, that be prepared the site-plan of the appellant's house (Ex. Ka-18) which was in his handwriting and bore his signature and that it also contains a Khasra and it truly depicted the things at site. It cannot be disputed that Ex. Ka-18 is a piece of documentary evidence in the case and was proved in accordance with law. Under Section 61 of the Indian Evidence Act the contents of a document may be proved either by primary or by secondary evidence', and under Section 62 thereof the document itself produced for the inspection of the court is the primary evidence of its contents. THE original document (Ex. Ka-18) itself was produced for the inspection of the court and proved in accordance with law. But as noticed above, the learned counsel for the appellant vehemently contended that the site-plan is not substantive evidence but could only be used by the Investigating Officer as an aid to his memory while making his statement on oath. He relied upon the decision of the Supreme Court in Tori Singh v. State of U. P., AIR 1962 SC 399 ; the decision of the Mad. High Court in Re Ramaswami, Prisoner Accused, AIR 1938 Mad. 336 ; and that of the Orissa High Court in Hadi Kirsani v. State, AIR 1966 Orissa 21. In Tori Singh's case (supra) the Supreme Court laid it down at page 401, Col. High Court in Re Ramaswami, Prisoner Accused, AIR 1938 Mad. 336 ; and that of the Orissa High Court in Hadi Kirsani v. State, AIR 1966 Orissa 21. In Tori Singh's case (supra) the Supreme Court laid it down at page 401, Col. 1 that although a sketch map in so far as it contains the mark of the spot where the deceased was said to have received the injuries, according to the statement of the witnesses was not admissible in evidence "for it is in effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit"; but "the sketch map would be admissible so far as it indicates all that the inspector saw himself at the spot.'' Note (1) in the sketch map (Ex. Ka-18) referred to above, contains a statement of what the Sub-Inspector himself observed at the spot and is, therefore, admissible in evidence, on the authority of the said decision of the Supreme Court. THE learned counsel, however, says that the Investigating Officer did not repeat the contents of the note in his statement on oath and, therefore, the sketch map by itself is no evidence in law and for this proposition he has relied upon the said decision of the Madras High Court in Re Ramaswami's case (supra) wherein it was held ("page 337, Col. 1) "THE Sub-Assistant Surgeon, when he gave evidence, was not asked anything about the state of the food in the stomach of the little boy. THE learned Sessions Judge was not justified in treating the post mortem certificate (Ex. B) as evidence and in extracting the sentence about the undigested food and relying upon that as if it were positive evidence in the case. THE post mortem certificate is not evidence. It could be properly used by the Sub-Assistant Surgeon when he was giving evidence, to refresh his memory and it could also be used as a record of what he observed at the time to corroborate, or perhaps to contradict, whatever he might say in the witness box ; but it cannot by itself be substantive evidence. It is clear that it would be unsafe to act upon an isolated statement of this kind in a post mortem certificate". It is clear that it would be unsafe to act upon an isolated statement of this kind in a post mortem certificate". Now, a post-mortem certificate contains a statement of the facts observed by the doctor as also his opinion on specified points. THE doctor can certainly refresh his memory by looking at the post mortem certificate and make a statement on oath before the court, and since it contains the observations made by him and as also the opinions expressed by him, he can certainly be cross-examined about the same, if he re-affirms the same on oath in the witness box. It is no evidence unless he comes forward and reaffirms its: correctness. In the instant case the Investigating Officer did appear in the witness box. THE sketch map of the house drawn by him was something which he could not reproduce in words while under examination in the witness- box. All that he could do was to say that the sketch map was drawn by him at the spot and was a correct representation of the things found by him at that place. THE note (1) under the sketch map could certainly be repeated by the Investigating Officer in words when he was being examined on oath. He did not repeat the same but contended himself by saying that all that was written there was true according to the state of things at site. I am of the Opinion that the short out adopted by the Investigating Officer in reaffirming that was stated in the note by a reference to the document, rather than by repeating verbatim the contents thereof, does not detract from the evidentiary value of what is stated therein. That such a statement as is contained in the note under the sketch map Ex. Ka-18, is admissible in evidence has been declared to be the law by the Supreme Court in Tori Singh's case (supra). Hadi Kirsari v. State, AIR 1966 Ori. 21 is also a case relating to the probative value of a posit mortem examination report. That such a statement as is contained in the note under the sketch map Ex. Ka-18, is admissible in evidence has been declared to be the law by the Supreme Court in Tori Singh's case (supra). Hadi Kirsari v. State, AIR 1966 Ori. 21 is also a case relating to the probative value of a posit mortem examination report. Here too it was laid down that it is not substantive evidence and it is only the statement of the doctor which he makes on oath before the court, which is substantive evidence, and the report can be used only to corroborate his statement under Section 157, or to referesh his memory under Section 169 or to contradict him under Section 145 of the Indian Evidence Act. What has been laid down in this case is that ordinarily the injury report or the posit mortem examination report given by a doctor is not substantive evidence and is inadmissible unless he is examined to court. In the present case the Investigating Officer was examined in count and he did reaffirm the correctness of the sketch map prepared by him. THE ratio-decidendi of the aforesaid case is thus not contrary to the view which I have adopted above on the probative value of the sketch map Ex. Ka-I6. 6. I, therefore, find that the ornaments in question were recovered from the possession of the appellant. The next question which arises in this context is about the state of the appellant's knowledge. Now, Illustration (a) to Section 114 of the Indian Evidence Act provides that the court may presume that a man 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 On the fact of the case discussed above, such a presumption may easily be drawn in the present case. The question raised by the learned counsel in this context is that such a presumption could be good enough only for a conviction under Section 411 IPC but not for the purposes of Section 412 IPC. Ordinarily that would be so, but in the Present case the appellant made a definite assertion, falsely though, that the ornaments belonged to his house-hold and were not taken by dacoity. If he could be presumed to have known that they were stolen property. Ordinarily that would be so, but in the Present case the appellant made a definite assertion, falsely though, that the ornaments belonged to his house-hold and were not taken by dacoity. If he could be presumed to have known that they were stolen property. it can as well be presumed in the circumstances of the present case that he knew or had reason to believe that their possession was transferred not by a simple theft, but by the commission of dacoity, more so in view of the fact that the dacoity had been committed in the same neighbourhood where his house is situate. The explanation given by the appellant for being in possession of the ornaments in question was false. It has been found above that the ornaments did not belong to him but to the complainant Lalji's house hold. There is thus no good ground for interfering with the appellants' conviction under Section 412 IPC. Now, about the sentence, the learned II Temporary Civil and Sessions Judge has awarded a sentence of five years' rigorous imprisonment. The appellant is a gold-smith. He was actuated by a varice in harbouring and retaining the stolen ornaments He had no hand in the dacoity. A heavy sentence of fine in addition to a short sentence of imprisonment is likely to prove more effective in the appellant's case than a long sentence of imprisonment without any fine. According to the recovery memo the value of the stolen ornaments was about Rs 2700/-. Lalji and his family can be presumed to have suffered loss on account of being deprived of the use of the ornaments for nearly eight years now. I am, therefore, of the view that a sentence of one year's rigorous imprisonment coupled with a fine of Rs. 5000/- will meet the ends of justice and out of the fine so realised the sum of Rs. 3000/- may be paid over to the complainant Lalji fin addition to the return of the recovered ornaments to him) as compensation. 7. IN the result, the appeal succeeds in part. The conviction of the appellant under Section 412 IPC is maintained. The sentence of five years' rigorous imprisonment awarded to him by the learned Civil and Sessions Judge is modified to one years' rigorous imprisonment coupled with a fine of Rs. 5.000/-. 7. IN the result, the appeal succeeds in part. The conviction of the appellant under Section 412 IPC is maintained. The sentence of five years' rigorous imprisonment awarded to him by the learned Civil and Sessions Judge is modified to one years' rigorous imprisonment coupled with a fine of Rs. 5.000/-. IN default of payment of fine the appellant shall be liable to undergo one more year's rigorous imprisonment. Out of the fine so recovered from the appellant the sum of Rs. 3000/- shall be paid over to the complainant Lalji son of Nanku, resident of village Mathela Police Station Valuea, District Varanasi, as compensation. The ornaments recovered by the Police and retained during the trial shall be returned forthwith to the said complainant Lalji. The appellant is on bail. His bail bonds are cancelled. He shall surrender forthwith and be taken into custody to serve out the sentence awarded to him. Appeal partly allowed.