Back
1976 Supreme(Ori) 4
ORISSA HIGH COURT
R. N. MISRA AND N. K. DAS, JJ.
RABI DAS AND OTHERS
VERSUS
STATE
Criminal Appeals Nos. 16 and 37 of 1974,
Decided on : 21 -1 -1976.
The evidence of an approver can be relied upon if it is corroborated by other evidence, including the testimony of eyewitnesses and circumstantial evidence.
Headnote:
CRIMINAL APPEAL - SECTION 396, 412 IPC - EVIDENCE OF APPROVER - CORROBORATION - IDENTIFICATION OF ACCUSED - RECOVERY OF STOLEN ARTICLES - SENTENCE.
Fact of the Case:
A gang of naxalites led by P.U.C. Appa Rao attacked the house of Malla Biswanath, a money-lender, and brutally murdered him. Several members of the gang were arrested and charged with dacoity and murder. The prosecution relied on the evidence of an approver, P.W. 23, who had been a member of the gang but had later surrendered to the police.
Finding of the Court:
The court held that the evidence of the approver was admissible and could be relied upon, as it was corroborated by other evidence, including the testimony of eyewitnesses and circumstantial evidence. The court also found that the identification of the accused persons was sufficient, despite some weaknesses in the evidence. The court further held that the recovery of stolen articles from the possession of the accused persons was a strong piece of circumstantial evidence against them.
Issues: 1. Whether the evidence of the approver was admissible and could be relied upon. 2. Whether the identification of the accused persons was sufficient. 3. Whether the recovery of stolen articles from the possession of the accused persons was a strong piece of circumstantial evidence against them.
Ratio Decidendi: 1. The court held that the evidence of the approver was admissible and could be relied upon, as it was corroborated by other evidence, including the testimony of eyewitnesses and circumstantial evidence. The court relied on the Supreme Court decision in Pascal Fernandes v. State of Maharashtra, which held that it is not necessary that the person to whom pardon is granted should have been arraigned as an accused. 2. The court held that the identification of the accused persons was sufficient, despite some weaknesses in the evidence. The court noted that the approver had identified the accused persons in court, and that their descriptions matched the descriptions given by other witnesses. 3. The court held that the recovery of stolen articles from the possession of the accused persons was a strong piece of circumstantial evidence against them. The court noted that some of the articles were found in odd places where the owners would not normally store them, and that this suggested that the articles had been stolen.
Final Decision: The court dismissed both appeals, but reduced the sentence of appellant Rabi Das from life imprisonment to ten years' rigorous imprisonment. The court also reduced the sentence of appellants Khatia Bhoya, Anama Bisoi, Ananta Sahu, and Jura Sahu from seven years' rigorous imprisonment to two years' rigorous imprisonment.
JUDGEMENT
R. N. Misra, J. :- Criminal Appeal No. 16 of 1974 is by 12 appellants while Criminal Appeal No. 37 of 1974 is by a sole appellant. These appellants along with several others were committed to the Court of Session on a charge punishable under Section 396 of the Indian Penal Code. In course of trial, the sole appellant of Criminal Appeal No. 37 of 1974 absconded and was not available for the rest of the trial. His case was, therefore, split up. By judgement dated 8-12-1973, the learned trial Judge convicted the appellants of Criminal Appeal No. 16 of 1974 - appellants 1 to 7, 11 and 12 under Section 396 of the Indian Penal Code and while appellant No. 1 was sentenced to rigorous imprisonment for life, the remaining appellants convicted under Section 396 of the Indian Penal Code were sentenced to rigorous imprisonment for ten years each; appellants 8 to 10 were convicted under Section 412 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for seven years. The sole appellant in Criminal Appeal No. 37 of 1974, by a separate judgement dated 29-1-1974, was convicted under Section 412 of the Indian Penal Code and given a sentence of seven years' rigorous imprisonment. As there was virtually one trial and essentially the judgements are one, the two appeals were heard together and this common judgement shall dispose of both the appeals.
2. Malla Biswanath was a resident of village Haradamara situated in the hilly tracts of Jarada Police Station on the Orissa-Andhra border and had taken to the professional occupation of Kumutis - running a shop of groceries and general merchandise within the village. He too was operating as a money-lender and advancing also loans of foodgrains to the Adivasi community of the locality. On 7-4-1971, during the day time he and his wife had gone out to the house of one of their married daughters in the neighbourhood. The inmates of his house were his wife, he himself, his only son (P.W. 12) who happened to be unfortunately a congenital cripple by both the legs, the latter's wife Kumari and his married sister (P.W. 20) who had come to her father's house for delivery and had already delivered a child a few months before the occurrence. The front room of the house was utilised both as a shop-cum-living room. In an ante room lay the iron-safe and other valuables and in yet another the deceased himself used to sleep. In the evening of that day, P.W. 12 had gone to sleep after dinner. In the front room slept the two ladies; a lantern was kept burning and the front door opening to the village street had been bolted from inside.
The house of Biswanath lay in the middle of the village. On the village street not far away from the main door of Biswanath's house was a one-roomed village school which was used as Puranghar and often referred to as the village temple. Apart from other connecting passages, the village is connected by a footpath leading to the hilly tracts and the jungle yonder across a rivulet locally known as Poichandia nallah. While members of the victim's family had thus retired, P.W. 8 was still busy reciting Purans on the temple verandah with the help of a lantern light and P.Ws. 6, 7 and 10 were some amongst his listeners.
3. Into this serene village life entered a gang led by one P. Appa Rao who on account of his educational qualification up to the P.U.C. standard had come to be known in the area as P.U.C. Appa Rao'. In this gang, there were persons like Paila Basudeb Rao, Rama Savara and two women by name Paramma and Ravanamma. These were a group of known naxalites operating in the area. These people along with the assistance of some local Adivasis had become a gang of 30 to 40 in strength and they suddenly appeared through the foot-path led by P.U.C. Appa Rao. Some of them were carrying guns and all others had lathis in their hands. The two women and some others were carrying cloth bags which were hanging from their shoulders and according to the prosecut
