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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Brij Bhushan Lal, for Appellant
  • Ram Avtar Government Advocate
Judges
  • Mr. Jawan Singh Ranawat
  • Mr. Kumar Krishna Sharma
Acts
  • sec. 27 of the Evidence Act.12.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Brij Bhushan Lal, for Appellant
  • Ram Avtar Government Advocate
Judges
  • Mr. Jawan Singh Ranawat
  • Mr. Kumar Krishna Sharma
Acts
  • sec. 27 of the Evidence Act.12.
See more information ...
Smart Summary

Written Summary of the Provided Opinion (Sharma, J.)

Factual and Procedural Background

This is an appeal by the accused, Dasu, against his conviction and sentence by the learned Sessions Judge, Alwar. The accused was convicted under section 411 of the Indian Penal Code and sentenced to three years' rigorous imprisonment.

The prosecution case (as set out in the opinion) is as follows:

  • On 17 November 1949 Azmat, a Meo boy aged about 11, went to graze buffaloes in the jungle of village Chaprara (Alwar District) wearing a gold ear-top in each ear and a pair of silver bangles.
  • In the evening the buffaloes returned without Azmat; a search located his dead body inside a well called Alam-wala well. The ornaments he had been wearing were missing from his person.
  • A written report (Ex. PA) was lodged the same day at the Police Station Sadar, Alwar.
  • On 21 November 1949 Dasu was arrested; the prosecution alleges that at his instance the ornaments were recovered from a corner of a thatched portion (a "Nohara") in his house used for tethering the family's cattle — the accused is said to have dug them out himself.
  • The deceased's body was post-mortemed and death was found to be due to asphyxia.
  • The recovered ornaments were identified before Mr. Ramanand, Magistrate III Class, Alwar, on 5 December 1949.
  • The accused was initially charged under sections 302 and 392 IPC, or alternatively under section 411 IPC; the Sessions Judge did not find him guilty of murder or robbery but convicted him under section 411 IPC.
  • The accused appealed against his conviction and sentence to this court.

Legal Issues Presented

  1. Whether the ornaments recovered were proved to be the ornaments belonging to the deceased Azmat and to have been stolen from him.
  2. If the ornaments were stolen property, whether the accused can be held guilty under section 411 IPC — i.e., whether the evidence (chiefly the recovery) establishes that the accused received the stolen property knowing or having reason to believe it to be stolen.
  3. Whether parts of the accused's statements to police and the evidence regarding discovery/recovery are admissible in evidence (issues under sections 25, 26 and 27 of the Evidence Act and procedural requirements under section 103 CrPC).

Arguments of the Parties

Appellant's Arguments

  • The ornaments were not satisfactorily proved to be the property of Azmat or to have been stolen from him: the F.I.R. did not specify weight or distinguishing description; such detail was not given at identification.
  • Identification of the ornaments at trial was defective: four witnesses were said to identify them (Ummed, Chhuttan, Kallu and Sumer Singh) but Kallu was not produced; Ummed had seen the articles at recovery (making his identification of limited value); Chhuttan and Sumer Singh could have been told the description by Ummed, undermining their identifications.
  • The evidence of recovery was deficient and inadmissible in part: the accused's alleged statement detailing that ornaments had been taken from the body of the deceased is a confession to police (inadmissible under sections 25 & 26 Evidence Act). The recovery was not attested by two or more respectable independent inhabitants as required by section 103 CrPC; witnesses who did attend (Kishanlal Tonga-wala and Motiram) were not independent/local respectable inhabitants (Kishanlal was engaged from Alwar; Motiram was a regular police witness).
  • Even assuming the recovery occurred, it was from a thatch used by the whole family (not in the exclusive possession of the accused), so recovery alone cannot sustain a conviction under section 411 IPC.

Prosecution's Arguments

  • The prosecution relied on the recovery of the ornaments from the accused's thatch and the identification evidence (including Sumer Singh and Chhuttan) to show the ornaments belonged to Azmat and were stolen.
  • The Government Advocate further pointed to evidence by Ummed and Chhuttan that Azmat had been seen in the company of the accused at about 1 p.m. on the day of occurrence as additional evidence connecting the accused to the crime.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Pulkuri Kottia v. Emperor, U.R. 1947 P.C. 67 Illustrates that a portion of an accused's statement to police which explains how an item was used in the commission of an offence (a confession) is inadmissible; distinctions between disclosure leading to discovery and confession are relevant. The court relied on this precedent to hold that the portion of the accused's statement alleging that the ornaments had been taken from the body of the deceased was an inadmissible confession to a police officer and could not be admitted; only the part that pointed to the ornaments being in the accused's house (relevant under section 27 Evidence Act) could be considered.
Public Prosecutor v. Bhimuni Pati Subbareddi, A.I.R. 1939 Madras 15 Holds that where a police officer already knows what the accused will say and subsequently arranges for witnesses to be present so as to record the disclosure, the evidence is not admissible as a discovery leading to recovery. The court applied this principle to exclude the testimony of witnesses (Ummed and Moti) who were present only after the Sub-Inspector had prior knowledge, concluding their presence did not make the subsequent disclosure the operative event leading to discovery.
In re Kottameddi Chennarddi, A.I.R. 1940 Madras 710 Affirms that it is the accused's first statement (to whomsoever made) that may lead to discovery; subsequent staged disclosures cannot be treated as the operative disclosure for admissibility. The court used this authority to conclude only the information communicated to the Sub-Inspector when he was alone could be viewed as leading to the discovery; statements subsequently made in the presence of other witnesses could not be used to establish discovery evidence.
Sohansingh v. Emperor, A.I.R. 1930 Lahore 91 Holds that recovery of stolen property from places belonging to the family and not exclusively to the accused may not, by itself, suffice to convict the accused under section 411 IPC — knowledge of hiding places by a family member is possible without criminal liability. The court relied on this precedent to emphasize that recovery from a family-used thatch did not necessarily prove the accused had received stolen property knowing it was stolen; recovery alone was insufficient to convict under section 411 IPC.

Court's Reasoning and Analysis

The court's analysis proceeds in discrete steps, applying evidentiary rules and precedents to the facts as found in the record:

  1. Identification and ownership of ornaments:
    • The court accepted that the ornaments recovered were the ornaments that Azmat was wearing when he disappeared. It rejected the contention that lack of particulars (e.g., weight) in the F.I.R. fatally undermined identification.
    • The court excluded Ummed's identification value (because he saw the articles at the recovery) but found the evidence of Chhuttan and Sumer Singh – especially Sumer Singh, the deceased's brother, who identified the ornaments before the identifying Magistrate and in court – to be reliable.
    • The appellant did not deny ownership of the ornaments by Azmat; he only denied that they were recovered from his house at his instance. Given this, the court was not prepared to overturn the Sessions Judge's finding that the ornaments belonged to Azmat.
  2. Whether the ornaments were stolen property:
    • The court accepted that the ornaments “were stolen by somebody from the body of Azmat” and thus were stolen property for the purpose of section 411 IPC.
  3. Admissibility of statements and discovery (Evidence Act sections 25, 26 and 27):
    • The prosecution's account included a statement by the accused to the Sub-Inspector asserting the ornaments were in his house and that he would recover them, and also a more incriminating portion that the ornaments had been taken from the deceased's body.
    • The court held that the portion of the statement amounting to a confession about taking the ornaments from the body was inadmissible as a confession to a police officer (citing sections 25 & 26 Evidence Act and Pulkuri Kottia v. Emperor).
    • However, the court observed that the narrower portion — that the ornaments were in the accused's house and he would recover them — could be relevant under section 27 Evidence Act (discovery).
    • On admissibility of witnesses to the disclosure, the court concluded that Sohanlal (the Sub-Inspector) testified the accused had told him first when alone, and that the subsequent presence of Ummed and Moti (who testified to the accused's readiness to recover) was staged after the Sub-Inspector already knew the information. Applying the authorities (Public Prosecutor v. Bhimuni Pati Subbareddi and In re Kottameddi Chennarddi), the court held that the testimony of Ummed and Moti about the disclosure could not be treated as establishing the operative discovery.
  4. Validity and probative value of the recovery:
    • The court scrutinized compliance with section 103 CrPC (recovery in presence of two or more respectable inhabitants). It noted the only witnesses at recovery were Kishanlal Tonga-wala (not from the village, engaged by the Sub-Inspector) and Motiram (a regular police witness), besides the Sub-Inspector himself, and concluded that the recovery was not shown to have been carried out in accordance with law.
    • Even if the recovery were credited, it was from a thatch used for tethering cattle by the accused's family (parents, brothers, sisters). The court emphasized that exclusive possession by the accused was not demonstrated and cited Sohansingh v. Emperor to show that family possession can explain knowledge of hiding places without implicating the accused in receiving stolen property.
    • Thus, the court concluded that the fact of recovery, in the circumstances, could at most show the accused knew where the ornaments were hidden — a fact insufficient, of itself, to establish guilty knowledge required for conviction under section 411 IPC.
  5. Other connecting evidence:
    • The Government Advocate pointed to evidence that Azmat had been seen in the company of the accused at about 1 p.m. on the day of occurrence (Ummed and Chhuttan). The court found this evidence insufficient to bridge the gap: it was not shown that Azmat remained only in the accused's company from 1 p.m. until his disappearance; the Sessions Judge had not relied on this testimony and had convicted solely on the basis of recovery.
  6. Conclusion on proof beyond reasonable doubt:
    • Weighing all of the above, the court concluded that the evidence did not establish the accused's guilt under section 411 IPC beyond a reasonable doubt. The principal evidential foundation for the Sessions Judge's conviction (the recovery) was unsafe for the reasons stated, and supplementary evidence did not supply the necessary link.

Holding and Implications

Holding: The appeal is allowed; the conviction and sentence are set aside and the accused is acquitted.

Immediate consequences and directions given in the opinion:

  • The accused shall be set at liberty forthwith unless required in connection with some other case.
  • The two Murkis and the bangles recovered during the investigation shall be returned to the family of the deceased.

Broader implications:

The court did not state that a new legal precedent was being established; rather, it applied existing evidentiary principles and authorities to the facts and found the prosecution's case insufficient. The decision underscores the following points (as applied in this case):

  • Portions of statements to police that amount to confession are inadmissible under the Evidence Act; only appropriate parts may be read under section 27 where they genuinely lead to discovery.
  • Discovery evidence is not admissible if the police officer already knew the information and only afterwards procured witnesses to be present when the accused repeated it.
  • Recoveries from premises not shown to be in the exclusive possession of the accused, particularly where family possession is involved, are insufficient by themselves to prove the accused received stolen property with guilty knowledge under section 411 IPC.

This summary is strictly confined to the material and reasoning contained in the provided opinion. No information has been added beyond what appears in that text.

Show full summary ...

    Dasuram v. State

    Sharma, J.:— This is an appeal by Dasu accused against his conviction and sentence by the learned Sessions Judge, Alwar. He has been convicted under sec. 411 I.P.C and sentenced to 3 years' rigorous imprisonment.

    2. The prosecution case is that one Azmat, a Meo boy about 11 years old, had gone on the 17th November, 1949 for grazing his buffaloes in the jungle of village Chaprara in Alwar District. He was wearing a gold ear-top in each of his ears and a pair of silver bangles on the wrists. In the evening the buffaloes came back alone and Azmat did not return. A search was made for Azmat, as a result of which his dead body was found inside a well called Alam-wala well. On the dead body, however, the ornaments, which Azmat was wearing when he started for grazing the buffaloes, were not found. A written report, Ex. PA under the signatures of Ummed and thumb-impressions of a Lambardar and Chho-talli Hissedar was lodged at the Police Station Sadar, Alwar, the same day. On the 21st November, 1949, Dasu accused was arrested and at his instance the ornaments given above were found from a corner of a thatched portion in his Nohara which was used for tethering the cattle of his family. These ornaments were dug out by the accused himself.

    3. The body of the deceased was subjected to post mortem examination, as a result of which it was found that his death was due to asphyxia.

    4. The ornaments alleged to have been recovered from the house of the accused at his instance were got identified before Mr. Ramanand, Magistrate III Class, Alwar, on the 5th December 1949.

    5. The accused was ultimately challaned under secs. 302 & 392 of the Indian Penal Code in the court of Mr. Prem Nath Magistrate I Class Alwar, who committed the accused to take his trial for offences under secs. 302 & 392 I.P.C, or in the alternative under sec. 411 I.P.C, before the Court of Sessions at Alwar.

    6. The accused denied the charge and pleaded that the witnesses, being Meos, had deposed falsely against him. The learned Sessions Judge was not satisfied that the charge of murder and robbery under secs. 302 & 392 I.P.C respectively was brought home to the accused. He, however, found him guilty under sec. 411 I.P.C and sentenced him to 3 years' rigorous imprisonment, as noted above.

    7. The accused has come in appeal to this court against his conviction and; sentence.

    8. It was argued by the learned counsel for the appellant that there was no satisfactory evidence to prove that the ornaments in question were the property of Azmat or were stolen away from him. It was argued that their weight or any particular description was not given in the F.I.R, nor was the weight or description of the other ornaments mixed up with the ornaments in question at the time of identification given. It was also argued that the articles were identified by four witnesses, Ummed. Chhuttan, Kallu and Sumer Singh. Of these Kallu was not produced for reasons best known to the prosecution. Ummed had seen the articles at the time of the recovery and so his identification was useless. Sumer Singh and Chhuttan had an opportunity of being told the description of the ornaments in question by Ummed and so their identification was also not of much use.

    9. On a careful consideration of the evidence on record we are satisfied that it is proved that the ornaments in question were the very ornaments which the deceased were on his person on the day of his death. Ummed's evidence may be ignored as he had seen the ornaments at the time of the recovery, but there is nothing to doubt the evidence of Chhuttan and the evidence of Chhuttan and Sumer Singh. Sumer Singh is the own brother of Azmat deceased and was, therefore, perfectly familiar with them. He identified them before the identifying Magistrate and also deposed on oath before the court that they were Azmat's ornaments which he was wearing at the time of his disappearance on the 17th of November 1949. The fact that their weight or any peculiarity was not given in the report does not matter under the circumstances of the case. The appellant himself did not deny that the ornaments belonged to Azmat. He simply stated that they were not recovered from his house at his instance, as alleged by the prosecution. Under these circumstances we are not prepared to hold that the learned Sessions Judge was wrong in holding that the ornaments belonged to Azmat.

    10. It is also clear that the ornaments in question were stolen by some body from the body of Azmat and therefore there is no force in the contention of the appellant that they were not the stolen property.

    11. The only question is whether the appellant can I be held responsible for receiving then, knowing or having reason to believe them to be stolen property. For this the only evidence is that of recovery of the ornaments. The prosecution case is that on the 21st November, 1949 the appellant himself showed his readiness to recover the ornaments. For this the evidence is that of Sohanlal Sub-Inspector and of Ummed and Moti. The Sub-Inspector says that the appellant told him that the ear-tops and the bangles, which the deceased was wearing and which had been taken off his body, were in the appellant's house and that he would recover them. The portion of the statement regarding the taking of those ornaments is inadmissible in evidence as it amounts to a confession. A confession made to a police officer or some other person, while the accused is in Police custody, is not admissible in evidence, vide secs. 25 & 26 of the Evidence Act. It was also held in the case Pulkuri Kottia v. Emperor reported in U.R 1947 P.C 67 that where the accused made a statement, “I will produce a knife concealed in the roof of my house, with which I stabbed the deceased,” The portion with which I stabbed the deceased, was inadmissible, since these words did not relate to the discovery of the knife in the house of the informant. We cannot, therefore, admit into evidence that portion of the statement which relates to the taking of the ornaments from the body of the deceased. It may, however, be said that the portion that he could recover the Ornaments from his house is relevant under sec. 27 of the Evidence Act.

    12. The only portion of the statement, which can be read in evidence, is that the appellant stated that the ornaments were in his house and that he would recover them. This statement has been attempted to be proved by the evidence of the Sub-Inspector Sohanlal and two witnesses Ummed and Moti. The evidence of the Sub-Inspector, however, is that the accused had already told him that he would recover the ornaments from his house, and that he told so in the presence of Ummed and Moti for a second time who were not present when this disclosure for the first time was made to the Sub-Inspector. Under these circumstances, the evidence of Ummed and Moti about the accused having shown his readiness to recover the property is not admissible. It was held in A.I.R 1939 Madras 15 (Public Prosecutor v. Bhimuni Pati Subbareddi) that where a Circle Inspector knew before-hand what the accused was going to say, but finding it necessary to have more trustworthy persons present as witnesses, when the information should be disclosed, he sent for two witnesses to go to the Police Station where the accused was kept in custody and on the arrival of those witnesses, the accused was brought out of the lock-up and examined by the Circle Inspector and the statement of the accused was embodied in a Panchayatnama and signed by the witnesses and the information, said to have been then given by the accused led to the discovery of certain instruments, by which the accused was alleged to have committed the murder, it was impossible to say that any thing was discovered in consequence of the statement made by the accused to the Inspector in the presence of the witnesses. Hence the evidence regarding the statement of the accused embodied in the Panchayatnama and spoken to the witnesses was wholly inadmissible. It was again held in A.I.R 1940 Madras 710 (in re Kottameddi Chennarddi) that it is the first statement of the accused to whomsoever made that leads to the discovery of the fact, after a fact is discovered. Thus it cannot be said that the ornaments in question were discovered on the information given to the Sub-Inspector in the presence of Ummed and Moti. The only information that can be said to have led to the discovery was the information said to have been given to the Sub-Inspector when he was alone.

    13. Coming to the question of recovery, it was argued by the learned counsel for the appellant that the recovery was not made in the presence of two or more respectable inhabitants of the locality, as required by sec. 103 of the Code of Criminal Procedure. The only witnesses, who are said to have been present at the time of the alleged recovery, are Kishanlal Tonga-wala who did not belong to the village, and Motiram who was more or less a permanent witness for the police & the Sub-Inspector himself. The recovery was, therefore, not in accordance with law. It was further argued that the recovery was made from a place which was not in the exclusive possession of the accused but was possessed by the whole family of the accused, consisting of his parents his brothers and sisters. Even if it be held that the recovery was made, as alleged, it at the most shows that the accused knew where the property was hidden. This alone would not be sufficient for his conviction under sec. 411 of the Indian Penal Code.

    14. We are certainly not satisfied with the manner in which the recovery was made. A lot of persons are living in village Chaprara and it was not difficult for the Sub-Inspector to call 2 or more independent witnesses of the locality at the time of the recovery. No such witnesses were called. It was considered sufficient that the recovery be witnessed by Kishanlal Tongawala who had been engaged by the Sub-Inspector from Alwar, and Moti Ram who has admittedly been utilized by the police on several similar occasions previous to the recovery in question. It cannot, therefore, be said without doubt that the recovery was made in the manner alleged by the prosecution. Moreover, even if the prosecution evidence is believed, the only thing which is proved is that the appellant recovered the ornaments in question from a thatch meant for tethering cattle of the family of the accused which consisted of several members including his parents. It cannot, therefore, be said that the said thatch was in the exclusive possession of the accused. It was held in A.I.R 1930 Lahore 91 (Sohansingh v. Emperor) that where an accused pointed out certain places, from which portions of stolen property were recovered and those places belonged to the family of the accused consisting of his father and other members, it was possible for the accused to have knowledge of the places, without himself being guilty for any offence and so the recoveries alone were not sufficient to justify the conviction under sec. 411 I.P.C The fact of the recovery alone, therefore, cannot be sufficient for the conviction of the appellant in the present case.

    15. The learned Government Advocate, however, argued that there was some other evidence besides the recovery of the ornaments in question and this evidence was that of Ummed and Chhuttan who had deposed that the deceased was seen in the company of the accused at about 1 in the afternoon on the day of occurrence. This evidence, is however, quite insufficient to connect the appellant with the crime. It has not been proved that the deceased did not fall into the company of any other person after 1 o'clock in the afternoon, and that the accused kept company with him right upto his disappearance. Moreover, the learned Sessions Judge himself has not relied on this evidence and has based his conviction only on the evidence about the recovery. We are, therefore, not satisfied that guilt has been brought home to the appellant without a reasonable shadow of doubt. His conviction under sec. 411 I.P.C cannot, therefore, be sustained.

    16. The appeal is allowed. The conviction and sentence are set aside, & the accused is acquitted. He shall be set at liberty forthwith unless required in connection with some other case. The two Murkis and the bangles recovered during the investigation shall be returned to the family of the deceased.

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    Comments

    Dasuram v. State
    (Sep 7, 1950)