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HIGH COURT OF ORISSA
NARASIMHAM,MOHAPATRA, JJ.
Bhima Shaw
Versus
State
Criminal Appeals Nos. 9, 15, 20 to 27 and 36 to 41 of 1954 and Govt. Appeal No. 8 of 1954 and Criminal Revn. No. 103 of 1954
Decided On : 10-01-1956
CRIMINAL APPEAL - GANG OF DACOITS - ASSOCIATION FOR THE PURPOSE OF HABITUALLY COMMITTING DACOITY - EVIDENCE OF PREVIOUS CONVICTION - CORROBORATION OF EVIDENCE OF ACCOMPLICE - CONFESSIONS OF CO-ACCUSED - SPLITTING UP OF CONFESSIONS - JUDICIAL CONFESSIONS - RETRACTION DURING TRIAL - ADMISSIBILITY OF CONFESSIONS - TEST IDENTIFICATION PARADE - SUBSTANTIVE EVIDENCE OF IDENTIFICATION - HARBOURERS OF DACOITS - RECEIVERS OF STOLEN PROPERTY - DISTINCTION - EVIDENCE OF BAD CHARACTER - RELEVANCY - EXPLANATION 1 AND 2 TO SECTION 54 OF THE EVIDENCE ACT - SECTION 400, PENAL CODE.
Fact of the Case:
The appellants were convicted under Section 400, Penal Code for belonging to a gang of persons associated for the purpose of habitually committing dacoity during the period from 28-11-49 to 18-7-52. The prosecution case was that during the year 1949 appellants Nalinikanta Das, Prananath Patnaik, Sk. Koresh and approver Upendra Dikhit, who were said to be the ring leaders of the gang, were in Balasore District Jail in connection with some other offences committed by them. During their stay there they conspired together with some other accused persons and decided to habitually commit dacoity, burglary and other allied offences soon after their release from jail.
Finding of the Court:
The court held that the prosecution had established beyond reasonable doubt that there was a gang under the leadership of Prananath Patnaik, Nalinikanta Das, Sk. Koresh and approver Upendra Dikhit, associated for the purpose of habitually committing dacoity in the district of Balasore and adjacent areas of Cuttack district. The court also held that the evidence of the approver was adequately corroborated by independent sources so as to lead to a reasonable inference that the appellants belonged to that gang.
Issues: 1. Whether the prosecution had established the existence of a gang of persons associated for the purpose of habitually committing dacoity? 2. Whether the evidence of the approver was adequately corroborated by independent sources so as to lead to a reasonable inference that the appellants belonged to that gang? 3. Whether the evidence of previous conviction was admissible to prove habit and association? 4. Whether the confessions of the co-accused persons could be used as evidence at all or only for the limited purpose of "lending assurance" if there was other evidence which, if believed, would support the conviction of an accused? 5. Whether the confessions or admissions of the accused persons could be split up and part of it alone used against them while rejecting the residue?
Ratio Decidendi: 1. The court held that the prosecution had established the existence of a gang of persons associated for the purpose of habitually committing dacoity on the basis of the following evidence: * The evidence of the Jailor of Balasore District Jail that appellant Prananath Patnaik was detained in Balasore jail from 14-2-47 to 26-1-50 in a proceeding under S. 110, Cr. P.C. * Appellant Nalinikanta Das was also in Balasore jail from 4-1-46 to 13-6-49 on a charge under S. 395 I.P.C. * Sk. Koresh was also in the same jail from 4-1-46 to 11-3-50 on a charge under Section 395 I.P.C. * Approver Upendra Dikhit (P.W. 2) was also in Balasore Jail from 29-12-48 to 7-2-49 and again from 8-3-49 to 19-11-40. * Balasore District Jail is a small jail with a population of about 200 prisoners and undertrials. Thus when these four persons were kept in that jail in close association for several months in 1949 it would be reasonable to infer that they utilised the opportunity to form themselves into a gang of dacoits and resume depredations soon after their release from jail. 2. The court held that the evidence of the approver was adequately corroborated by independent sources so as to lead to a reasonable inference that the appellants belonged to that gang on the basis of the following evidence: * The evidence of the Parikhi witnesses about the appellants' association with the leading members of the gang. * The recovery of stolen property from the house of appellant Abhimanyu Sahu. * The identification of appellant Srikanta Mohapatra by the victim of Jagannathprasad dacoity in a T. I. parade. * The arrest of appellant Srikanta Mohapatra with the other members of the gang and the recovery of stolen property from Sadananda Misra's house on 15-8-50. 3. The court held that the evidence of previous conviction was admissible to prove habit and association on the basis of the following authorities: * Empress v. Naba Kumar Patnaik, 1 Cal WN 146 (F) * Public Prosecutor v. Bongiri Pattigadu 32 Mad 179 (G) * Emperor v. Sher Mahomed, 1923 Bom 71 (AIR V 10) (H) * Bonai v. King-Emperor, 38 Cal 408 (I) * Kader Sundar v. Emperor, 13 Ind Cas 279 (Cal) (J) * Kasem Ali v. Emperor, 1920 Cal 87 (AIR V 7) (K) * Ledu Molla v. Emperor, 1925 Cal 872 (AIR V 12) (L) * Motiram Hari v. Emperor 1925 Bom 195 (AIR V 12) (M) * Beni Madho v. Emperor, 1933 Oudh 355 (AIR V 20) (N) * Khilawan v. Emperor, 1923 Oudh 430 (AIR V 15) (O) 4. The court held that the confessions of the co-accused persons could be used only for the limited purpose of "lending assurance" if there was other evidence which, if believed, would support the conviction of an accused on the basis of the Supreme Court decision in Kashmira Singh v. State of Madhya Pradesh, 1952 SC 159 (AIR V 39) (U). 5. The court held that the confessions or admissions of the accused persons could not be split up and part of it alone used against them while rejecting the residue on the basis of the Supreme Court decision in Hanumant Govind Nargundkar v. State of Madhya Pradesh, 1952 SC 343 (AIR V 39) (V).
Final Decision: The appeals of the convicted persons were dismissed. The revision petition filed by the State Government for enhancement of the sentence passed on Amulya Chandra Das was allowed and his sentence was enhanced to ten years rigorous imprisonment. Similarly, the revision petition for enhancement of the sentence passed on Gour Chandra Dutta was allowed and the sentence passed on him was enhanced to five years rigorous imprisonment. The Govt. Appeal against the acquittal of Abhimanyu Sahu was allowed, the order of acquittal passed by the learned Sessions Judge was set and he was convicted of the offence under S. 400, I.P.C. and sentenced to seven years rigorous imprisonment. The order of acquittal of Paramananda Behera and Kali Charan Maharana was maintained and the Govt. appeal against their acquittal was dismissed.
Judgement
NARASIMHAM, J. :- This is an appeal from the judgment of the Sessions Judge of Balasore convicting the appellants under S. 400, Penal Code and sentencing them to various terms of imprisonment. Fortyfive persons were tried in the Court of the learned Sessions Judge for an offence under S. 400, I.P.C., on the allegation that they belonged to a gang of persons associated for the purpose of habitually committing dacoity during the period from 28-11-49 to 18-7-52.
The learned Sessions Judge convicted twenty-three persons and acquitted the rest. The State Government preferred an appeal (Government Appeal No. 8 of 1954) against the acquittal of Abhimanyu Sahu, Paramananda Behera and Kalicharan Maharana. They also filed a revision petition (Crl. Rev. No. 103/54) for enhancement of the sentence passed on Gour Chandra Dutta and Amulya Chandra Das. Of the convicted persons accused Haradnan Mukherji, Gour Chandra Dutta, Kalu Khan, Sk. Kasi alias Kasiruddin and Gourhari Jena did not prefer any appeal against their conviction and sentence.
The remaining convicted persons preferred both regular appeals and jail appeals. All these appeals and the criminal revision were heard together and will be dealt with in one judgment.
2. The accused persons belong to various communities, diverse castes and two different States. Some of them, namely, Tarak Chandra Banerji, Haradhan Mukherji, Gour Chandra Dutta and Amulya Chandra Das belong to Bengal. The rest of them belong to Orissa; but most of them are residents of Balasore district. Accused Prananath Patnaik and his cousin Kali Charan Patnaik, however, belong to Puri district and accused Maheswar Maharana belongs to village Patpur, P.S. Dharmasala in Jaipur subdivision of Cuttack district. All the dacoities were said to have taken place either in Balasore district or in Cuttack district during the period in question.
3. I give below a list of the offences of dacoity or burglary which, according to the prosecution case, were committed by the gang during the said period.
*(Approver concerned.)
Note :- In the charge the period of association of the gang was said to be from 15-2-1947 to 18-2-1952. But during the trial of the case the period of the operation of the gang was limited to the interval between 28-11-1949 and 18-7-1952. This period alone will be taken as the relevant period for the purpose of this case.
4. The learned Sessions Judge held that of the aforesaid offences items 9, 10, 11, 12, 13, 14, 15, 16 17, 20, 21, 23, 26, 27, 38, 30 and 31 were committed by the gang either with or without the participation of the approver but that in respect of items 18, 19, 22, 24, 25 and 29 it was not clearly established that the gang was responsible for these offences.
The prosecution case was that during the year 1949 appellants Nalinikanta Das, Prananath Patnaik, Sk. Koresh and approver Upendra Dikhit, who were said to be the ring leaders of the gang, were in Balasore District Jail in connection with some other offences committed by them. During their stay there they conspired together with some other accused persons and decided to habitually commit dacoity, burglary and other allied offences soon after their release from jail.
The exact date of the conspiracy was not clear from the evidence of the approver though from certain statements made by him about their having met together on a Sunday while all the persons were collected in the jail to hear religious discourses given by a Hindu Pandit the Public Prosecutor tried to fix the date somewhere between the 14th and the 16th June, 1949.
Approver Upendra Dikhit was released from Balasore District Jail on bail on 19-11-49 and the burglary at Motiganj in Balasore town (item 9) was said to have been committed by him in association with some other members of the gang on 28-11-49. The gang thus continued to commit seven dacoities and one burglary during the year 1950 at various places in Balasore district (items 10 to 17). But on 15-8-50 these ring-leaders and so
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