SIDHE DOMA Vs. STATE

JUDGEMENT

(1.) THE Petitioner was convicted under Section 379/75. Indian Penal Code by the Sub -Divisional Magistrate Dharamgarh and was sentenced to undergo R.I. for two years and under Section 565. Code of Criminal Procedure he was directed to notify his resilience to the police for a period of two years thereafter. On appeal the Sessions Judge of Bolangir was of opinion that there was no justification to award the enhanced sentence under Section 75. Indian Penal Code and therefore while upholding his conviction under Section 379. Indian Penal Code he reduced the sentence to R.I. for one year. He however maintained the order under Section 565. Code of Criminal Procedure passed against the Petitioner. The case against the Petitioner is that at about 8 P.M. On 12.6.164, while the daughter aged 3 1/2 years of p.w. 1 Nandakishore Panda was sleeping on the verandah of his house, the Petitioner snatched away the gold necklace weighing 1 ¼ tolas from her neck. The child cried whereupon p.w. 1 came from inside the house and raised a hulla which brought his neighbours to the spot. He saw a man running away from the spot and he was chased by p.w. 1 and his neighbours. They found that the person running away was the Petitioner who then entered into his house. Information was given to a constable who happened to be present in the village. The constable went and arrested the Petitioner, who was then taken to the police station where the F.I.R. was lodged. Next day the Sub -Inspector of Police searched the house of the Petitioner and recovered there from the necklace (M.O. I.) which was found inside an earthen pot kept on a Sika in the Petitioner's house. The necklace which was recovered was identified to be the one belonging to his daughter by p.w. 1, Nandakishore Panda and also by his neighbours. The Petitioner pleaded not guilty and stated that he did not commit the offence. He examined 3 defence witnesses, who stated that on the date of occurrence they had gone to the hat along with the Petitioner and returned home by about 6.30 P.M. As rightly pointed out by the learned Sessions Judge even if the defence evidence is believed, it would not make the prosecution case improbable because the prosecution case is that the occurrence took place at about 8 P.M.

(2.) ONE important feature which has been brought to my notice by the learned Advocate appearing for the Petitioner which appears to have been completely overlooked by the Courts below is the discrepancy in the weight of necklace as mentioned in the F.I.R., with that of the necklace recovered from the Petitioner's house. In the F.I.R. Ex. 1 the weight of the necklace was mentioned as 1 ¼ toile while the weight of the necklace recovered from the house of the Petitioner as mentioned in the seizure list Ex. 2 is: 3/16 of a toll. It is the prosecution case that shortly after the Petitioner entered into his house after committing the alleged theft, the Constable came to the spot and the Petitioner was arrested and brought to the Thana and the search of his house took place early next morning. If the necklaces recovered from the Petitioner's house is only a part of one which is alleged to have been stolen from p.w. 1's house, there is no explanation as to what happened to the remaining portion of the necklace. It is no body's case that while snatching the necklace from the neck of the girl the thief succeeded in taking only a portion of it. The seizure of the necklace is the most important link in the circumstances to connect the Petitioner with the crime. But strangely enough during the latter's examination under Section 342, Code of Criminal Procedure on question was put to him about the alleged seizure of M.O.I. from his house. This is a serious lacuna in the prosecution Case, the benefit of which must go to the Petitioner. That apart the evidence about the seizure is also not free from blemish. Of the two seizure witnesses only one namely Akhil Chandra Panda (p.w. 6) has been examined, and his evidence is that he stayed on the verandah of the Petitioner's house while the Sub Inspector and Constable entered into the house and after some time came out and stated that they found M.O. I. inside an earthen pot kept inside the room. There is nothing in the evidence of p.w. 6 to show that he himself bad seen M.O. I. inside an earthen pot kept in the Petitioner's house. It is well established that the circumstances appearing against the accused should not be considered unless an opportunity is given to him to explain the same in his examination under Section 342, Code of Criminal Procedure. That being the position the seizure of M.O.I. regarding which the Petitioner had not been questioned during his examination under Section 342, Code of Criminal Procedure cannot be utilised against him and if this part of the prosecution case is kept out of consideration there is no other evidence on the basis of which the conviction of the Petitioner can be maintained.