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1977 Supreme(Sikk) 1
SIKKIM HIGH COURT
MANMOHAN SINGH GUJRAL, A. M. BHATTACHARJEE, J.
PREM BAHADUR RAI, ACCUSED
VERSUS
STATE OF SIKKIM
Criminal First Appeal No. 2 of 1977,
Decided On : 4 -6 -1977
A joint statement made by multiple accused persons is not admissible against any of them unless it can be shown which accused person made the first statement leading to the discovery of the stolen property.
Headnote:
CRIMINAL APPEAL - Lurking House Trespass - Robbery - Section 457, 34, 392, 34 IPC - Evidence - Accomplice - Section 114, 27 IEA - Presumption - Section 114(a) IEA - Charge - Section 443, 444 IPC - Interpretation.
Fact of the Case:
The appellant was convicted of lurking house trespass and robbery under Sections 457 and 392 IPC, respectively, for allegedly entering a house at night and stealing an earring. The prosecution's case was based on the testimony of the victim, her husband, the investigating officer, and a witness who purchased the stolen earring from the appellant.
Finding of the Court:
The court found that the evidence against the appellant was insufficient to prove his guilt beyond a reasonable doubt. The court held that the alleged disclosure statement made by the appellant to the investigating officer was inadmissible because it was not made in the presence of any independent witnesses. The court also found that the evidence of the witness who purchased the earring was unreliable because he was an accomplice who had been discharged from the case.
Issues: 1. Whether the alleged disclosure statement made by the appellant to the investigating officer was admissible in evidence. 2. Whether the evidence of the witness who purchased the earring was reliable. 3. Whether the appellant was guilty of lurking house trespass and robbery.
Ratio Decidendi: 1. The court held that the alleged disclosure statement made by the appellant to the investigating officer was inadmissible in evidence because it was not made in the presence of any independent witnesses. The court relied on the principle that a joint statement made by multiple accused persons is not admissible against any of them unless it can be shown which accused person made the first statement leading to the discovery of the stolen property. 2. The court held that the evidence of the witness who purchased the earring was unreliable because he was an accomplice who had been discharged from the case. The court noted that an accomplice is a competent witness but may not be reliable unless their evidence is corroborated in material particulars. In this case, there was no corroboration of the witness's evidence, and the court found that his evidence was further weakened by the fact that the alleged recovery of the earring was not made in the presence of any independent witnesses. 3. The court held that the appellant was not guilty of lurking house trespass and robbery because the evidence against him was insufficient to prove his guilt beyond a reasonable doubt.
Final Decision: The court allowed the appeal, set aside the conviction, and acquitted the appellant.
Key Points: - A joint statement made by multiple accused persons is not admissible against any of them unless it can be shown which accused person made the first statement leading to the discovery of the stolen property (!) . - The evidence against the appellant was insufficient to prove his guilt beyond a reasonable doubt (!) . - A disclosure statement made by the appellant to the investigating officer was inadmissible because it was not made in the presence of any independent witnesses (!) . - The evidence of a witness who purchased the stolen earring was unreliable because he was an accomplice who had been discharged from the case and his evidence was not corroborated (!) . - The court allowed the appeal, set aside the conviction, and acquitted the appellant (!) (!) . - The appellant was convicted under Sections 457 and 392 IPC for lurking house trespass and robbery (!) . - The prosecution's case relied on the testimony of the victim, her husband, the investigating officer, and a witness who purchased the stolen earring (!) . - The alleged recovery of the earring was not made in the presence of any independent witnesses, and the seizure memo was prepared at the police station, not on the spot (!) . - There was no document like an account book or purchase receipt to show that the earring was purchased by the witness in a bona fide manner (!) . - The court noted that a person committing house-trespass or house-breaking by night does not necessarily commit "lurking house-trespass" unless active steps were taken to conceal their presence (!) . - The learned Sessions Judge was wrong in convicting the accused for robbery or house-trespass (!) .
What is the admissibility of a joint statement made by multiple accused persons?
What is the reliability of an accomplice's testimony in a criminal case?
What constitutes "lurking house-trespass" under the Indian Penal Code?
Bhattacharjee, J. :- This is an appeal by the accused Prem Bahadur Rai against the judgment of the learned Sessions Judge, Sikkim at Gangtok, dated, 11th March, 1977 in Criminal Case No. 26 of 1976, whereby the accused has been convicted under Section 457 read with Section 34 and Section 392 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under Section 457 read with Section 34 of the Indian Penal Code and also to rigorous imprisonment for the same period under Section 392 read with Section 34 of the Indian Penal Code, both the sentences to run concurrently.
2. The case of the prosecution appears to be that on 30-1-1976, at about 12 O'clock, a report was received at the Pakyong out post from one Mahabir Limboo to the effect that during the night between 28th and 29th January, 1976, one ear-ring of his wife had been robbed by some unknown persons who ran away immediately after the occurrence. A formal F.I.R., marked Exhibit 2, was recorded on the basis of the above report, marked Exhibit 1, and the investigation proceeded and was conducted by the Sub-Inspector of Police, C. L. Khenal. During the course of investigation it was found that the complainant Mahabir Limboo and this wife Sukrani Limbooni were returning to their house in Aho Busti from Pakyong Bazar and that they were followed by two unknown persons on the way up to their house but they could not and did not remember their descriptions as the night was a dark one.
3. The accused Prem Bahadur Rai, the appellant before us, and Prem Kumar Rai, who is reported to be absconding, were arrested on suspicion and the prosecution case is that during their interrogation they admitted to have committed robbery in respect of the aforesaid ear-ring of Sukrani Limbooni by entering the house during night on 28th/29th January, 1976, and that they subsequently sold the said ear-ring to Laxman Agarwala, who was also an accused in this case but was subsequently discharged, for Rupees five hundred and that later on the said golden ear-ring was recovered from the shop of the said Laxman Agarwala.
4. It appears that during the course of the trial, an application was filed by the Court Inspector for discharging the accused Laxman Agarwala as according to the prosecution, the case was not substantiated against him and also praying for examining the said Laxman Agarwala as a witness. The said Laxman Agarwala was eventually examined by the prosecution being witness No. 6 for the prosecution.
5. As the accused Prem Kumar Rai absconded and accused Laxman Agarwala was discharged, the trial proceeded against the accused-appellant Prem Bahadur Rai only and he was charged by the learned Sessions Judge under Section 457 read with Section 34 of the Indian Penal Code for committing lurking ho.use trespass and also under Section 392 read with Section 34 of the Indian Penal Code for committing robbery. The accused pleaded not guilty and claimed to be tried.
6. The prosecution examined six witnesses in support of its case. P.W. 1 is Dr. S. Rai; P.W. 2 is Mahabir Limboo, who is the husband of Sukrani Limbooni in respect of whose ear-ring the alleged robbery was committed; P.W. 3 is Phurba Kazi, who was in charge of the Pakyong Out Post at the relevant time; P.W. 4 is Sukrani Limbooni, whose earring has been alleged to have been robbed; P.W. 5 C. L. Khenal is the Sub-Inspector of Police who investigated the case and submitted the charge sheet; and P.W. 6 is Laxman Agarwala to whom the stolen ear-ring was alleged to have been sold by the accused and who was originally sent up for trial but was subsequently discharged.
7. P.W. 1, Dr. Rai, in her deposition stated that she examined Sukrani Limbooni on 31-1-1976 and that she found a slight injury with dried up blood clots on the right lobe of the ear that the injury was simple in nature.
8. P.W. 2 is Mahabir Limboo, who lodged the first information and he stated in his deposition that on Wednesday in t
