NARI SANTA Vs. EMPEROR

JUDGEMENT

(1.) Criminal Appeal No. 26 is on behalf of four persons from jail, and Appeal No. 11 is on behalf of the same persons excepting Shanker Dutta. They were convicted under Section 411, Indian Penal Code, by the Sessions Judge of Cuttack-Sambalpur and sentenced to two years rigorous imprisonment each. The case for the prosecution is that there was a theft in the house of one Labanya Bewa of village Mahamaliya on the night of 8 October 1943. The first information report was lodged on 9th October, at 4 p. M. the village being about seven miles from police station Bhandari Pokhri. Investigation was taken up by the officer who took down the first information report, but later on he made over charge of it to the Sub-Inspector of police on 19 October 1948. As a result of informations received, houses of the present appellants as well as of the co-accused were searched. The learned Judge tried the case against the accused under various charges-ss. 395,412, etc., but he has not recorded any conviction under Secs.895 or 412 or 392 because he found that the names of the present appellants were not mentioned in the first information report. He has not recorded any conviction under Section 412 because he was not satisfied that a case of dacoity was made out. He has convicted the appellants under Section 411 only, as I have said already. In the course of the investigation, it is said, the appellants produced certain articles, and then made a confessional statement. Now, these articles are being claimed by them as their own. The question, therefore, is whether those statements could be taken into consideration against the appellants. Section 27, Evidence Act, lays down that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

(2.) Therefore, can it be said that, after the articles were produced by the accused and then statements were made by them, that their statements led to the discovery of the articles produced ? I am of opinion that that is not the case here. A similar view was expressed in Reg. V/s. Jora Hasji (74) 11 Bom. H. C. R. 242. That being so, what is the evidence (against the accused : that the Sub-Inspector went and the accused produced certain things and those things were claimed by them as their own later on. Then the next item of evidence that could have been used against the appellants was that these things, which originally belonged to the complainant, were found in the possession of the accused after a theft, and, therefore, a presumption could be raised that they were in possession of stolen property. But in this connexion I have to point out that with regard to the things that were produced, test identifications were held, and those test identifications were so unsatisfactory that the learned Judge has not relied upon the result. "What happened may well be described in the words of the learned Judge himself: Then as to the test identification of the recovered or seized articles, the officers who are said to have conducted these tests are P. Ws. 1 and 2. The first witness is a Supply Inspeotor at Bhadrak. The second witness is a medical officer. Both of them were new to the work, and the only instructions which they received for their guidance are the rules printed in the forms themselves as also certain hints given by the police officers, who are more or less connected with the investigation of this case. Before the first officer as many as 141 items were put up for identification. The items are varied and numerous. It is not known how four or five of each variety could be mixed up with these articles for going through these tests. The witness adds that on each of the articles put up for identification some labels written in vernacular were pasted to indicate the places from which these articles were recovered . or seized. He adds that no such labels were placed on the articles which were mixed up with the suspected articles.

(3.) I must deprecate the practice of having test identifications at a police-station where the police officers are in a position to advise the officer under whose guidance the test identification is to be held. The things that are said to have been identified by the witnesses are of common use. No special features can be mentioned. Some stress was laid upon the fact that one of the things identified was blouse and the other a chemise. Such articles, unless they have special marks or features, are not difficult to be found in the market. I am of opinion, therefore, that the identification of the articles also is not satisfactory. So when the identification of the articles is not satisfactory and the statements of the accused that is being used against them cannot be taken in legally, the evidence against the appellants is almost nil. With regard to accused Hari Sahu, the learned Advocate-General has conceded that there is hardly any case against him and he would not press for a conviction of that appellant. The fact is that he was a goldsmith, and the prosecution story is that certain things were produced by one of the persons who are supposed to have taken part in the theft and he melted them. Without any evidence to the effect that he knew that, what he was melting was stolen property, no conviction can be passed. In the result I would allow these appeals, set aside the convictions and sentences and acquit the accused. Those who are on bail will be discharged from their bonds. Imam, J.