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2002 DIGILAW 779 (ORI)

SIKANDAR MULLAH v. STATE OF ORISSA

2002-12-04

P.K.MOHANTY

body2002
JUDGMENT : P.K. Mohanty, J. - Since all these three appeals arise out of a common judgment, on the prayer, with the consent and on agreement of the Learned Counsel for the parties, they are taken up together, heard and disposed of by this common judgment. 2. The Appellants have been convicted under Sections 395 Indian Penal Code, 1860 (for short 'I.P.C. ') and sentenced to undergo rigorous imprisonment for five years by the learned First Additional Sessions Judge, Berhampur in Sessions Case No. 22/91 (S.C. 93/91 GDC). 3. The prosecution case in short is that when the informant Arnapurna Patnaik was sleeping in a rented house in Medical Colony, Berhampur along with her two sons and husband, in the night of 26/ 27.8.1990 after closing the doors including the main entrance and the back door, she woke up at about 2.00 A.M. and found six young men inside the room who had covered their faces and were wearing Lungi and half pants. One of them pointing the revolver, enquired from her about the cash received by her towards the sale proceeds of the land. The accused persons threatened her showing bombs, searched the house, suit-cases and almirah. By opening the almirah they could take away cash of Rs. 5,000/-, three gold necklaces, ear ornaments, ear flowers, necklace, ring and chain, They also took away Philips brand Commander radio, Camera, H.M.T. (Asha) watch and twenty numbers of silk sarees of different colours. They tied the hands of the informant by means of a blouse. After their departure, the informant came to her son and woke him up and narrated the incident in detail. On 27.8.1990 the First Information Report was lodged at Baidyanathpur Police Station at about 7.30 A.M. The police registered the case and took up investigation. The investigation could not proceed effectively. However, on 12.1.1991 when the police officials of different police stations of the town were performing antidacoity patrol, they found eight persons sitting in the middle of a paddy field. The police party suspecting the accused persons, surrounded them. However, at this, the accused persons ran to escape, but out of the eight, accused Sikandar Mullah and Abdul Kadr were caught. Abdul Kadir and two others, however, having escaped from the jail custody, the case had been split up. The police party suspecting the accused persons, surrounded them. However, at this, the accused persons ran to escape, but out of the eight, accused Sikandar Mullah and Abdul Kadr were caught. Abdul Kadir and two others, however, having escaped from the jail custody, the case had been split up. On search, the police officials found from Abdul Kadir four live bombs and a loaded police revolver of.38 containing five live cartridges bearing No. GA 17, in a plastic bag. The revolver was the subject matter in Baidyanathpur P.S. Case No. 198 of 1990. Accused Sikandar Mullah gave recovery of the hourse-breaking instrument made of G.I. pipe. On interrogation, it revealed that they were brought by one Rama Sahu alias Lalu, the Appellant in Jail Criminal Appeal No. 34 of 1996 and accused Sk. Jamir, the Appellant in Jail Criminal Appeal No. 326 of 1996. Abdul Kadir confessed to have been involved in many other dacoity cases and, while so doing, disclosed that the booty obtained from dacoity were being kept in the house of Rama Sahu, one of the present Appellants at the Good-Shed Road, Lanjipali. He led the police party to the house of Rama Sahu at Good-Shed Road, Lanjipali from where recovery of gold and silver ornaments including cartridges of.38 revolver and in total seventytwo items were seized in presence of the witnesses. However, accused Rama Sahu was not present in the house. Accused Abdul Kadir further led the police party to the house of Sk. Jamir and on search twenty-two items including gold ornaments, wrist watch, silver ornaments etc. were recovered and seized. Accused Sk. Jamir was not in his house, but his wife was present. Accused Rama Sahu alias Lalu, accused-appellant Sk. Jamir were arrested on 25.1.191. Charge-sheet was filed against six accused persons out of whom three have escaped from the jail custody, for which the case had been split up andAppellants were tried alone. 4. The plea of the accused persons in their statements u/s 313, Code of Criminal Procedure was one of denial. 5. The learned Additional Sessions Judge framed three issues for determination. The stolen articles recovered from the house of accused Rama Sahu and Sk. Jamir were indentified by the informant (P.W. 2). The Test Identification Parade was conducted in respect of the accused persons, but none of them were identified. 5. The learned Additional Sessions Judge framed three issues for determination. The stolen articles recovered from the house of accused Rama Sahu and Sk. Jamir were indentified by the informant (P.W. 2). The Test Identification Parade was conducted in respect of the accused persons, but none of them were identified. The learned Additional Sessions Judge, on analysis and on appreciation of evidence, has returned a verdict of guilt against all the accused persons. The learned Additional Sessions Judge has relied on the evidence of P.Ws. I, 4 and 5 for finding the accused persons guilty. 6. The Learned Counsel for the Appellants at the outset submitted that on perusal of the impugned judgment, it is apparent that the learned Additional Sessions Judge had not recorded any finding based on materials that the accused-appellant Rama Sahu was either a person participated in the crime or in any other crime inasmuch as solely on the basis of the recovery of some articles said to have been stolen from the house of P.W. 2, the informant, at the instance of a co accused person, has come to the finding that the accused-appellants were guilty of the offence of dacoity. The Learned Counsel have referred to paragraph-II of the judgment to contend that the basis for which the learned Additional Sessions Judge has found the Appellant guilty, is that there were some recoveries of stolen articles from different places including the houses of Appellant Rama Sahu and Sk. Jamir which were indentified by the informant to have been stolen from her house on the date of occurrence. It is contended that the learned Additional Sessions Judge having held that if a stolen article is found from the house of a person, then two legal presumption, can be made, that either the person was a thief or a receiver of stolen property. But without any material whatsoever to connect the presentAppellant with the alleged crime, save and except the recovery, he has jumped to the conclusion that the accused Appellants are guilty of the offence u/s 395 I.P.C. The observation of the learned Additional Sessions Judge that the accused Sikandar Mullah was armed with deadly weapon at the time of arrest is thoroughly irrelevant for the purpose of conclusion that the Appellants were guilty. The Learned Counsel have referred to the decisions in Satrughana Oalabehera and Ors. The Learned Counsel have referred to the decisions in Satrughana Oalabehera and Ors. v. State 56 (1983) CLT 405 and Joge Gopal alias Joge and Anr. v. State: (1994) 7 O.C.R. 190 in support of his contention that the statements of the co-accused persons in course of investigation or trial cannot be treated as evidence since it is hit by the provisions contained in Section 162, Code of Criminal Procedure Mr. Ch. P.K. Mishra, learned Additional Public Prosecutor, however, relying on the decisions in Balbir Singh Vs. State of Punjab, submits that so far as confessional statement of one accused is concerned, it may be taken into consideration against the other accused if it fulfils the condition. laid down u/s 30 of the Evidence Act, one of the confessions must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration. In the said judgment also it has been held that where both confessions were retracted subsequently, the proper approach is to consider each confession as a whole on its merits and use it against the maker thereof, provided the Court is in a position to come to an unhesitating conclusion that the confession was voluntary and true. In the case at hand, the confession of co-accused persons Sikandar Mullah and Abdul Kadir which is strongly relied on by the prosecution is to the effect that they were brought by accused Rama Sahu alias Lalu and accused Sk. Jamir from Calcutta to commit dacoity and that the booty from the dacoity were kept in the houses of the accused Rama Sahu at Good-shed Road, Lanjipali. The accused persons also indentified the house of Sk. Jamir and Rama Sahu from where other articles were seized which were subsequently identified by the informant (P.W. 2). The learned Additional Sessions Judge rightly observed that recovery of stolen articles or possession thereof leads to the presumption that either the person was a thief or he was a receiver of stolen property. In the T.I. parade, the informant could not identify the culprits. In such view of the matter, on consideration of the entire evidence on record as deposed by the witnesses and relied on, the learned Additional Sessions Judge could not have returned the verdict of guilt against the accused-appellants u/s 395 I.P.C. 7. In the T.I. parade, the informant could not identify the culprits. In such view of the matter, on consideration of the entire evidence on record as deposed by the witnesses and relied on, the learned Additional Sessions Judge could not have returned the verdict of guilt against the accused-appellants u/s 395 I.P.C. 7. The question is on the basis of the materials availabfe on record whether the present accused-appellants could be convicted u/s 395 I.P.C. or u/s 412 I.P.C. 8. There are clinching materials that the articles which were the subject matter of dacoity including the service revolver belonging to the A.S.I. involved in another case were recovered either from the person or from the houses of the accused-appellants which were duly identified by the owner thereof to be the properties taken away in course of dacoity, during the T.I. Parade. However, the accused persons could not be identified. No explanation whatsoever has been offered as to how the accused-appellants came to possess such articles. The articles which were recovered being the subject matter of dacoity and having been properly and duly identified by the owner of the articles, the presumption, in law would be that the Appellants were the receivers of stolen properties which were the subject matter of dacoity. Therefore, there is no escape from the position that the Appellants are liable u/s 412 I.P.C. Since there are. clinching and over whelming materials and the articles recovered are the subject matter of the present dacoity case, I am of the opinion that the sentence of five years would be the appropriate sentence to meet the ends of justice. This view is supported by the decision of the Apex Court in Chhote Lal Singh Vs. State of Madhya Pradesh, . 9. In the circumstances, I alter the conviction of the accused-appellants u/s 395 I.P.C. to one u/s 412 I.P.C. and sentence each of the accused-appellants to undergo rigourous imprisonment for five years which was the sentence awarded by the learned Sessions Judge for the conviction u/s 395 I.P.C. 10. The appeal is thus disposed of with the aforesaid modification.