Judgement

FAZL ALI, J. : I do not wish to express dissent from the order proposed by my learned brothers, as the order seems to be the logical consequence of the findings arrived at by the High Court in revision, which lend to throw very great doubt on one of the crucial questions in the case, namely, whether any theft was committed at all. It is clear that if there was no theft, the appellant s conviction for offences of which the main ingredient is theft, cannot be sustained. But I must confess that a careful reading of the judgment of the High Court has produced an uneasy feeling in my mind that the High Court has not bestowed the same care and attention upon the facts and the evidence of the case as they have received from the first two courts. There can be no doubt that where the interests of justice demand, the finding of the Courts, which normally deal with the facts of a case, may be reopened and may even be reversed by the High Court, but, before that is done, every item of relevant evidence upon which the findings to be reversed are based, should be carefully scrutinized and weighed.

2. In the present case, the conclusion arrived at by the learned Judges of the High Court that no crowbar was used in the commission of the alleged theft and that the marks on the safe were probably made in the course of investigation by the Superintendent of Police, seems to have been arrived at without considering and appreciating the evidence of K. C. Paricha, P. W. 23 - the police officer in charge of Koraput police station - who visited the scene of theft soon after it was reported, and who states to have found the padlock of the chest missing, the locking arrangement of the embedded lack broken and the staple of the outer locking arrangement damaged. Again, the learned Judges of the High Court, while referring in the concluding part of their judgment to the fact that the confession of the appellant had received some corroboration, have relied on matters of a more or less trivial nature which afford little corroboration of any value, and entirely omitted to mention the recovery of two sums of money, which, according to the appellant himself, were part of the proceeds of the theft. Thus, a situation has arisen in which, a, confession which was found by the first two courts to have been corroborated in all material details, has become a meaningless statement, upon the findings arrived at by the High Court and the opinions expressed by it.

3. B. K. MUKHERJEA J. : I agree that the appeal should be allowed, and I concur substantially in the reasons given by my learned brother, Chandrasekhara Aiyar J., in his judgment.

4. CHANDRASEKHARA AIYAR J. : This Criminal appeal comes up for our consideration on the strength of leave granted by the High Court of Orissa under Article 134(1) (c) of the Constitution of India. The order granting leave is a lengthy one and proceeds on the basis that the conviction of the appellant amounted to a miscarriage of justice on the facts and that there was failure to comply with the requirements of S. 342, Criminal P. C.

5. Arjun Misra, the appellant, was charged with another person Patnaik with offences under Ss. 457/380/461, Penal Code, (house breaking by night to commit theft, the substantive offence of theft, and dishonestly breaking open a closed receptacle). The case for the prosecution was that these two persons entered into a room on 17-11-1946 (Sunday) in the District Police Office at Koraput where the iron safe was kept, broke it open, and removed a sum of Rs. 2,290-14-0 from a net-bag in the safe. A confession was recorded from the appellant by a 1st Class Magistrate on 22-111946. This confession narrates many details about the plan for the commission of the offence, how it was actually committed, what happened to a crow-bar which was employed to break open the outer padlock of the sure as well as the embedded lock, and how the stolen currency notes were disposed of. As many as 26 witnesses were examined f