NAKUL MIRDHA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Challenge in this revision is to the order of conviction recorded by the trial court against the petitioner under section 380 of the Indian Penal Code sentencing him there under to undergo rigorous imprisonment for a period of one year which has been affirmed by the appellate court. The petitioner, it was alleged, committed theft of ornaments and other articles belonging to the first informant Balaram Pradhan (P.W. 1) from his dwelling house on November 3, 1977. No one has seen the petitioner in the process of actual removal of articles from inside the dwelling house. The entire case against him has been rested on the alleged recoveries of stolen articles from his possession.

(2.) From an accessible place were recovered some articles kept concealed on the petitioners showing that place to P.Ws. 2 and 3, the latter being a police officer. There was no evidence that the petitioner had made a statement that he had kept concealed the articles. Recoveries of some articles concealed at a place which might have been within the knowledge of the petitioner could not, by itself, be sufficient to hold that the petitioner must have been in possession of those articles as this circumstance would not warrant a conclusion that he was the author of concealment. (See Pohalya Motya Valvi v. State of Maharashtra.

(3.) It has been urged by Mr. Mukherjee for the petitioner that there was no evidence that the articles identified by P.W. 1 as belonging to him were exactly the articles which had been recovered from the accessible place and from the house of the petitioner in the course of investigation by the Investigating Officer (P.W. 4) in the presence of P.W. 2. No doubt, no test identification parade had been conducted in this case. The owner of articles may, however, be in a position to identify his articles by untranslatable impressions of his mind although he may not be in a position to formulate the reasons of such identification. In the instant case, however, although P.W. 1 had identified in the court the articles as belonging to him for which those articles had been marked as Material Objects, neither the police officer nor the witnesses to the search and seizure in respect of those articles bad, in particular, identified those articles in the court. They had given evidence generally about the recoveries and seizures of different articles, but had not identified the articles to be those Material Objects identified by P.W. 1 in the court. The chain of evidence in this regard is not complete. In this state of evidence, it cannot be held, as had wrongly been found by the courts below, that the petitioner had been in possession of the stolen articles. Regard being bad to this serious infirmity and lacuna in .the prosecution evidence, the learned Standing Counsel has submitted and in my view, very fairly so, that the order of conviction cannot be sustained.