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1987 Supreme(Ori) 364
IN THE HIGH COURT OF ORISSA
L. Rath, B.K. Behera, JJ.
STATE OF ORISSA - APPELLANT
Versus
BHIKARI CHARAN PATNAIK - RESPONDENT
Decided On : 13-01-1987
D.P. Sahoo, in Government Appeal No. 46 of 1980 and R. Patnaik, in Criminal Appeal No. 15 of 1982, for the Appellant; D.P. Sahoo, Standing Counsel in Criminal Appeal No. 15 of 1982 and R. Patnaik in Government Appeal No. 46 of 1980, for the Respondent
Circumstantial evidence must be clearly established and incompatible with the innocence of the accused in order to support a conviction.
Headnote:
CRIMINAL LAW - MURDER - SECTION 302, 392, 394, 404 OF THE INDIAN PENAL CODE - CIRCUMSTANTIAL EVIDENCE - RECOVERY OF GOLD ORNAMENT - CONVICTION U/S 404 OF THE CODE - APPEAL AGAINST ACQUITTAL AND CONVICTION.
Fact of the Case:
The appellant was charged with murder, robbery, and possession of stolen property. The trial court acquitted the appellant of the murder and robbery charges but convicted him of possession of stolen property under Section 404 of the Indian Penal Code.
Finding of the Court:
The High Court upheld the trial court's acquittal of the appellant on the murder and robbery charges, finding that the circumstantial evidence was insufficient to prove his guilt beyond a reasonable doubt. However, the High Court upheld the appellant's conviction for possession of stolen property, finding that his statement leading to the recovery of the stolen gold ornament was admissible under Section 27 of the Evidence Act and that he had failed to explain how he came into possession of the ornament.
Issues: 1. Whether the circumstantial evidence was sufficient to prove the appellant's guilt of murder and robbery beyond a reasonable doubt. 2. Whether the appellant's statement leading to the recovery of the stolen gold ornament was admissible under Section 27 of the Evidence Act. 3. Whether the appellant had failed to explain how he came into possession of the stolen ornament.
Ratio Decidendi: 1. In a case of circumstantial evidence, the evidence must be clearly established and incompatible with the innocence of the accused. 2. A statement made by an accused person that he would show the place where he had kept concealed an article of the deceased is admissible under Section 27 of the Evidence Act. 3. If an accused person fails to explain how he came into possession of stolen property, he can be deemed to be in possession in the eye of law.
Final Decision: The High Court dismissed both the government's appeal against the acquittal and the appellant's appeal against the conviction.
JUDGMENT :
B.K. Behera, J. - The Government Appeal and the Criminal Appeal arising out of the same judgment and order have been heard together and will be governed by this common judgment.
2. The convict (to be described herein after as the 'Appellant') stood charged under Sections 302, 392 and 394 of the Indian Penal Code (for short, 'the Code') with having committed the murder of Kaluni alias Gouri Dei (to be described hereinafter as the 'deceased') by intentionally causing her death on April 1, 1979 and with having committed robbery in the course of which gold ornaments of the deceased including gold necklace had been removed. The Appellant's plea was one of denial and false implication.
3. It is not disputed at the Bar that the deceased had died a homicidal death. There is no witness to the occurrence. The case depended on circumstantial evidence which, in order to be acted upon, had to be clearly established and would have to be incompatible with the innocence of the Appellant.
4. Discarding the evidence of P.W. 7 that the Appellant had been found near about the dead body of the deceased on the day and at the approximate time of occurrence and not giving undue importance to the conduct of the Appellant in concealing himself inside his house when the police officer went to his house which could not be a guilt-pointing circumstance for the reasons recorded by the trial court in its judgment and besides, might be owing to the instinct of self-preservation, the trial court has accepted but one item of evidence, viz., the recovery of M.O.V. a gold necklace which was on the person of the deceased at the time of her death consequent upon the statement made by the Appellant which had led to its discovery. In the absence of other evidence pointing to the Appellant's guilt, the trial court has held that the charge u/s 302 of the Code could not be said to have been brought home to the appel1ant and the evidence did not warrant a conclusion that the Appellant had committed offences punishable under Sections 392 and 394 of the Code. But as the Appellant was in possession of M.O.V. shortly after the death of the deceased, it was held that the Appellant could be convicted u/s 404 of the Code although he had not been charged with it. The trial court has convicted the Appellant u/s 404 of the Code and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of six months.
5. The State is in appeal against the order of acquittal in respect of the offences with which the Appellant,stood charged and the Appellant has assailed the order of conviction and sentences passed against him u/s 404 of the Code.
6. Upon hearing the learned Standing Counsel for the State and Mr. R. Patnaik, for the Appellant, we find that in a case of this nature and in the circumstances of the case, it would not be safe and proper to record a conviction of the Appellant u/s 302 of the Code only on the basis of the recovery of a gold ornament consequent upon the statement made by the Appellant which had led to its discovery. The reasons recorded by the trial court while holding the Appellant to be not guilty of the charges of murder and robbery cannot be dislodged. The trial court has taken a view in favour of the Appellant in respect of these charges which cannot be said to be unreasonable or perverse. No interference by an appellate court in such circumstances against the order of acquittal is justified.
7. Coming to the appeal preferred by the Appellant, Mr. Patnaik has urged that regard being had to the place from where the gold ornament had been recovered which an accessible one, the Appellant could not be saddled with any criminal responsibility, even accepting that his statement had led to the discovery of M.O.V.
8. M.O.V. has properly been identified by P.W. 6 who is no other person than the husband of the deceased and by another close
