Baladev Khes and Another vs State of Orissa

L. Rath, J.—Both the appellants having been convicted u/s 412, IPC, and sentenced to R. I. for five years each, in a trial u/s 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 PW 9 on 16-3-1984 and decamped with very many valuables like cash, gold ornaments, wrist-watches, radio, etc. While all were acquitted of the charge u/s 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 PWs 14 and 15, respectively the A. S. I. in-charge of Kuarmunda outpost under Birmitrapur 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 PW 14 ; PWs 8 and 9 the identifying witnesses and PW 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 PW 6 is a stock witness of the police and hence is not believable and so far as evidence u/s 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 u/s 114 illustration ''a'' is not available lo be drawn for which reason the conviction becomes unsustainable.

For an appreciation of the submissions, the evidence of PWs 14 and 15 is necessary to be discussed. PW 15 says that he arrested appellant Baladev on 25-3-1984 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 ear-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), PW 15 also stated that he arrested appellant No. 2 Rojin @ Biren 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. PW 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 PWs 8 and 9. There is also no dispute over the question of identification of the properties as deposed by PWs 8 and 9. So far as PW 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 identity 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.

The learned Addl. Govt. Advocate appearing for the State has strenuously urged that the evidence of PWs 14 and 15 read with the evidence of PWs 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) 1 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 recovery is made, that information or statement becomes admissible u/s 27 of the Evidence Act. Analysing the evidence of PW 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 ha 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 PW 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 u/s 144 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 article for 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 Mad 384 (In re Kirukku Mayandi) to hold :

"In cases of pointing out, especially of stolen properties, the real question is not so much whether the accused was in physical possession of the properties hidden somewhere or buried in some field as whether he was the person that so hid the properties, for a person who buries treasure in a spot unknown to others is really in possession of it and it does not matter whether it is in a field not in his occupation or in his own house.

XX XX Thus a person who hides a thing is in possession of it because he gains thereby a reasonable guarantee of the use of it.

XX XX The difficulty with regard to the place where the property is found, being a public place or a place not in the control of the accused is got over if the property is found to be so carefully and cautiously hidden away from human gaze that a member of the public could not possibly know of its presence there and it therefore leads to the inference that the person who knows its whereabouts is the person who secreted it there.

XX XX It is up to the investigating officers to question the accused as to the details of the exact location of the secreted article and to lead evidence as to the secrecy of the place, the correspondence between the details given out by the accused and the actual finding of the article, and the case with which the accused got straight to the point at which the article was concealed, in order to show that the accused must have dealt with the object to justify the knowledge displayed. The detailed knowledge of the location of the secreted object will serve to displace other hypothesis that may be possible though not probable."

Such other hypothesis are that someone told the accused of the place of secretion or that he managed to see an actual unknown criminal hide the thing. The fact however remains that before such hypothesis are excluded and the only reasonable presumption of the accused concealing the property is established, it is for the investigating officer to establish the fact that the accused had possession over the same in the sense that he had both the corpus of the article and the animus about it. Only then the onus would shift to the accused and the other such hypothesis would be ruled out and the presumption u/s 114 can be effectively drawn.

Scanning the evidence of PW 15 it is seen that absolutely no attempt has been made by the I. O. to establish that the appellants had exclusive control of the corpus of the seized articles or the necessary animus of possession regarding them. The mere fact that the appellants pointed out the places or that the investigating officer recovered the stolen articles would not enable the Court to rely upon the provision to draw presumption against the accused. That being so, it cannot be held that the charge u/s 412, IPC has been brought home against the appellants.

In that view of the matter, the appeal is allowed. The conviction and sentence of the appellants are set aside. As it is submitted by the counsel for the parties that the appellants have in the meantime served the sentences, there is no need of directing their release from custody.