BALADEV KHES Vs. STATE OF ORISSA

JUDGEMENT

(1.) Both the appellants having been convicted under Section 412, IPC and sentenced to R.I. for five years each, in a trial under Section 395, IPC along with five others, have approached this Court in appeal. The case of the prosecution was that the appellants along with five others committed dacoity in the house of P.W. 9 on 16-3-84 and decamped with very many valuables like cash, gold ornaments, wristwatches, radio, etc. While all were acquitted of the charge under Section 395, IPC, the appellants were found to be receivers of stolen properties through commission of dacoity and hence were convicted as such. The case of the prosecution, so far as appellants were concerned, rests upon the evidence of P. Ws. 14 and 15, respectively, the A.S.I. incharge of Kuarmunda outpost under Biramitrapur P.S. who first of all had taken up the investigation and the O.I.C. of Biramitrapur P.S. who took up investigation after P.W. 14; P.Ws. 8 and 9 the identifying witnesses and P.W. 6, a witness to the fact of recovery of the articles at the instance of the appellants, while in police custody. Mrs. Mohanty, learned counsel appearing for the, appellants, has urged that P.W. 6 is a stock witness of the police and hence is not believable and so far as evidence under Section 27 of the Evidence Act relating to information given by the appellants leading to discovery of the stolen articles is concerned, the same is not credible, the exact information so given having not been proved. Besides, it is also urged by her that in absence of such evidence the presumption under Section 114, illustration 'a' is not available to be drawn for which reason the conviction becomes unsustainable.

(2.) For an appreciation of the submissions, the evidence of P.Ws. 14 and 15 is necessary to be discussed. P.W. 15 says that he arrested appellant Baladev on 25-3-84 who led him and the witnesses to the backside of his house to a land and indicated the place where he had concealed the stolen properties. On his information the witness dug out the place and recovered amongst other things one gold necklace, M.O. III, four gold bangles (M.O. IV), a pair of car-flowers (M.O. V), a gold Mohar (M.O. VI), one H.M.T. wristwatch (M.O. X) and one H.M.T. Kohinoor wristwatch (M.O. XI). P.W. 15 also stated that he arrested appellant No. 2 Rojin @ Biren Dung Dung who led him and the witnesses to the place of concealment and gave recovery of a transistor (M.O. VII) which he seized under seizure list Ext.7. P.W. 14's evidence consists of proving the corresponding documents showing the ownership of the articles seized. It is not necessary to discuss his evidence as it is not disputed that the properties recovered were owned by P. Ws. 8 and 9. There is also no dispute over the question of identification of the properties as deposed by P.Ws. 8 and 9. So far as P. W. 6 is concerned, it is his evidence that he accompanied the police during the investigation of the case. He admitted in the cross-examination that he had also given evidence in some other cases on behalf of prosecution and stated that he could not identify all the articles which were given recovery by the accused persons. From his evidence it appears that he figured as a witness frequently for the police and hence is not a reliable one.

(3.) The learned Addl. Govt. Advocate appearing for the State has strenuously urged that the evidence of P. Ws. 14 and 15 read with the evidence of P.Ws. 8 and 9 would conclusively establish the fact of not only ownership of the articles recovered but also of the fact that it was the two appellants who had concealed the articles and had given recovery of the same. So far as Section 27 of the Evidence Act is concerned, the law is far too well settled that the statement which is admissible thereunder is the one which is the information leading to discovery. Thus what is admissible being the information, the information itself has to be proved and not the opinion formed on the information by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is hence necessary for the benefit of both the prosecution and the accused that the information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. A mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. Dealing with the question, a Division Bench of this Court in (1988) OCR 400 (Bhaga Gouda @ Vainra v. State) held that the exact information given by the accused while in custody or in other words, the statement made by the accused, must be recorded by the Investigating Officer and if pursuant to such information or statement becomes admissible under Section 27 of the Evidence Act. Analysing the evidence of P.W. 15 in the above context it is seen that in the case of both the appellants his statement merely is that the appellants led him and the witnesses to the places of recovery and so far as appellant No. 1, Baladev is concerned he led the witnesses to the place where he had concealed the stolen articles and, so far as appellant No. 2 Rojin @ Biren is concerned he led them to the place of concealment and gave recovery of a transistor. Such statement of the witness merely is his opinion formed on the statements of the appellants but not the exact information given by the appellants. That being so, the rest of the evidence of P.W. 15 that he dug the place and brought out the articles so far as appellant No. 1 Baladev is concerned would not establish the fact that the properties were under his possession. Similar is the case with appellant Rojin. So as to draw the presumption under Section 114 on which heavy reliance is placed by the learned Addl. Government Advocate, it is necessary that the prosecution discharges the initial onus on it that the person charged with the offence had possession of the stolen goods soon after the theft. Thus the two essential elements necessary to be established are his possession of the articles and that the possession is soon after the incident. So far as the possession is concerned, it implicitly suggests exclusive possession of the charged person, i.e. to the exclusion of all others. Possession indicates both physical as well as a mental act so that the person who possesses has the consciousness of physical possession over the property. In other words, the two elements of possession, i.e. both the corpus and the animus, are to be established by the prosecution before the presumption can be drawn. So far as concealment of the properties by the charged persons is concerned, it must be of such character that the accused had concealed the property in a manner so as to get exclusive control over the same with reasonable expectation that others would not be able to interfere with his possession. It follows that the place of concealment may not be necessarily his own house or land but may be a place otherwise accessible to the public, but if the concealment has been done in such manner so as to shield the articles from the public gaze and so hide it as to gain exclusive knowledge of the same, the element of possession can be taken to have been established. The act of concealment may be such which the prosecution has to establish that the very manner of concealment was for his exclusive control. The matter was discussed in AIR 1958 Madras 384. (1958 Cri LJ 1042) (In re Kirukku Mayandi) to hold at Page 1044; of Cri LJ: