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1981 Supreme(Ori) 121
ORISSA HIGH COURT
B. K. BEHERA, J.
KHAGENDRA GAHAN
VERSUS
THE STATE
Jail Criminal Appeal No. 97 of 1978,
Decided on : 7 -11 -1981.
The evidence of an accomplice witness must be corroborated in material particulars connecting each of the accused persons with the crime.
Headnote:
CRIMINAL LAW - DACOITY - CONVICTION - EVIDENCE - APPROVER'S EVIDENCE - CORROBORATION - RECOVERY OF STOLEN PROPERTY - IDENTIFICATION OF ACCUSED - POSSESSION OF STOLEN PROPERTY - BURDEN OF PROOF.
Fact of the Case:
The appellant was convicted of dacoity and sentenced to 10 years of rigorous imprisonment and a fine of Rs. 100. The prosecution's case was that the appellant and others committed dacoity in the house of Satrughna Sahu and removed cash, ornaments, and other articles. The appellant's defense was that the evidence of the approver was not reliable and that the materials on record did not show that the recovered properties had been recovered from his possession.
Finding of the Court:
The court found that the evidence of the approver was not corroborated by any other evidence and that the recovery of the stolen property from the appellant's possession was not proved beyond a reasonable doubt. The court also found that the appellant could not be convicted of the lesser offense of robbery as there was no evidence to corroborate the approver's evidence.
Issues: 1. Whether the evidence of the approver was reliable and corroborated by other evidence. 2. Whether the recovery of the stolen property from the appellant's possession was proved beyond a reasonable doubt. 3. Whether the appellant could be convicted of the lesser offense of robbery.
Ratio Decidendi: 1. The court held that the evidence of the approver was not reliable as he was a self-condemned person who had been granted pardon. The court also held that the evidence of the approver was not corroborated by any other evidence. 2. The court held that the recovery of the stolen property from the appellant's possession was not proved beyond a reasonable doubt as the evidence of the recovery was inconsistent and there was no evidence that the appellant was in exclusive possession of the place from which the property was recovered. 3. The court held that the appellant could not be convicted of the lesser offense of robbery as there was no evidence to corroborate the approver's evidence.
Final Decision: The court allowed the appeal, set aside the conviction and sentences passed against the appellant, and ordered his release.
JUDGEMENT
1. The appellant, who stood trial along with other persons, being charged under S.395 of the I.P.C. with having committed dacoity in the house of Satrughna Sahu of village Biridisasan in the district of Balasore during the night of 12th/13th Mar. 1975, in the course of commission of which cash, ornaments and many other articles were removed from the possession of the victim, stands convicted thereunder and has been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 100/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of two months. There were in all eleven accused persons in the case of whom the appellant and eight others stood charged under S.395 of the I.P.C. and two others, namely, Gayadhar Sahu and Shyam alias Hunda Jena stood charged under S.412 of the I.P.C. All the accused persons except the appellant were acquitted of the charges.
2. Briefly stated, the case of the prosecution was that during the night of the 12th/13th Mar. 1975, the appellant and others committed dacoity in the house of Satrugtma Sahu (P.W. 2) and removed cash, ornaments and other properties. On the basis of the first information report (Ext. 1) lodged by P.W. 2, the Officer-in-Charge (P.W. 12) of the Simulia Police Station, took up investigation in the course of which witnesses were examined, the appellant and the other accused persons were arrested and some properties removed during the commission of dacoity were seized. Steps had been taken for the identification of some of the suspects at a test identification parade. One of the culprits, namely, Purusottam Pati (P.W. 1) turned to be an approver. Including him, the prosecution had examined fifteen witnesses to bring home the charges. Neither the appellant nor any of the other accused persons had examined any witness in defence.
3. On a consideration of the evidence, the learned Sessions Judge discarded the case of the prosecution with regard to the other accused persons and came to find that the evidence of the approver against the appellant had received corroboration from the fact of seizure of M.O. I (4 silver Chutkis) and M.O. II (a silver ring set with a red stone) from the possession of the appellant and held that the charge of dacoity against the appellant had been established.
4. Miss P. Leela, appearing for the appellant, has submitted that the evidence on record would not warrant a conviction of the appellant against whom the evidence of the approver could not be accepted and the materials on record did not show that M. Os. I and II, identified by P.W. 2 as belonging to him, had been recovered from the possession of the appellant. The learned Additional Standing Counsel has, however. submitted that the appellant had properly been convicted.
5. In view of the positive case of the prosecution sought to be founded on the evidence of the approver (P.W. 1) who had specifically named himself, the appellant, the other eight accused persons named in the charge under S.395 of the I.P.C. and Purna Dehury who not prosecuted and in view of the finding of the learned Sessions Judge that the eight persons other than the appellant named in the charge had not committed dacoity, only three other persons, namely, the approver (P.W. 1), the appellant and Purna Dehury remained. When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity, as provided in S.391 of the I.P.C. When, as in the instant case, the charge did not mention that the one persons named thereinand othershad committed dacoity and no evidence was led that besides the appellant and eight others named to the charge, there were other unnamed or unidentified persons besides, of course, Purna De
