Hrudananda Mohanty vs State of Orissa

B.K. Behera, J.—The Petitioner assails the order of conviction recorded against him by the trial court and affirmed by the court of appeal u/s 379 of the Indian Penal Code sentencing him to undergo rigorous imprisonment for one year for having committed theft of Rs. 1,950/- from the chest pocket of the first-informant Debraj Pattnaik (P.W. 1) while he was travelling in a bus on March 20, 1979.

2.. As has been submitted at the Bar, the only evidence against the Petitioner was the recovery of Rs. 1,950/- from a place behind the latrine of the Athgarh Police Station consequent upon a statement said to have been made by the Petitioner that he had kept the amount concealed. This evidence has been admitted u/s 27 of the Evidence Act.

Law has been well-settled that the conditions necessary for the application of Section 27 of the Evidence Act are that:

(a) the fact of which evidence is sought to be given must be relevant to the issue,

(b) the fact must have been discovered in consequence of some information received from the accused,

(c) the person giving information must be accused of any offence, and

(d) he must be in the custody of a police officer.

The discovery of a fact in consequence of information received from an accused in custody must be deposed to. That portion only of the information which relates distinctly to the fact discovered can be proved and the rest is inadmissible.

It is unfortunate that the trial and appellate courts lost sight of the fact that even the Investigating Officer (P.W. 6) before whom the statement had allegedly been made had not testified in his evidence that the Petitioner was in custody. Consequently, any such statement made by him to a police officer could not be admitted in evidence. The order of conviction based thereon is illegal and misconceived.

I would allow the revision and set aside the order of conviction and sentence passed against the Petitioner.