Pravakar Nayak @ Kanduri Nayak @ Budha vs State Of Orissa

S.S. Mishra, J.

The present appeal is directed against the judgment of conviction and order of sentence dated 18.09.2007 passed by the learned Ad hoc Additional Sessions Judge (FTC), Balasore in S.T. Case No.43/79 of 2004-2000, whereby the appellants have been convicted for commission of the offence punishable under Section 3(a) of the Orissa Electric Supply Line Material (Unlawful Possession) Act, 1988 and sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs.1,000/- each, in default whereof, to undergo further rigorous imprisonment for three months each.

Heard Mr. Bhabani Shankar Dasparida, learned Counsel appearing for the appellants and Mr. A. Mohanty, the learned Additional Government Advocate appearing for the Respondent-State.

The prosecution case, in brief, is that in the night intervening 18th and 19th June, 1998, while the informant, who was then the Officer-in-Charge of Raj Berhampur Police Station, was performing night patrolling duty at Gohira Crossing along with his police staff, he received confidential information regarding theft of aluminium wire from an 11 KV electric line at Tinikonia Forest. Acting upon such information, he proceeded to the spot along with his staff and, with the assistance of some villagers of Kalakada, conducted a raid in the forest. On reaching the spot, they found that three spans of aluminium wire had been cut and kept in four bundles, with some portions of the wire lying scattered nearby.

During the raid, the police party surrounded the forest and found a jeep bearing registration No. ORB-1168 stationed there, in which the present appellants were allegedly found occupying. On verification of the said jeep, three hacksaws/iron cutters, two big ropes and small pieces of aluminium conductors were recovered from inside the vehicle. It is further alleged that, during the raid, the persons present at the spot started pelting stones, as a result of which some of the villagers sustained injuries. The informant thereafter seized the aluminium wire, the jeep and the other articles found therein and prepared a plain-paper F.I.R. at the spot. The accused persons were apprehended at the spot and their identities were ascertained during interrogation. Upon return to the police station, the informant drew up the formal F.I.R. and took up investigation. On completion of investigation, charge-sheet was submitted against the accused persons, and on denial of charges the case proceeded to trial.

In order to bring home the charge, the prosecution has examined thirteen witnesses. P.W.13 is the informant as well as the Investigating Officer. P.Ws.2 and 7 are officials of the Electricity Department. P.W.5, a police constable, and P.W.8, a police A.S.I., were members of the raiding party. P.Ws.1, 3, 10, 11 and 12 have been examined as eyewitnesses to the occurrence. P.W.6 was the doctor, who examined the injured persons, P.W.9 was the Sub-Inspector of Police who submitted the charge-sheet, and P.W.4 has been declared hostile by the prosecution. The defence has examined no witness.

The learned trial Court, upon an elaborate appreciation of the evidence adduced by the prosecution, rejected the defence plea that mere apprehension of the accused persons with the jeep inside the forest could not establish their involvement in the theft of aluminium wire. The learned trial Court relied upon the ocular evidence of the prosecution witnesses, the seizure of the aluminium wire and the cutting and bundling instruments from the jeep, as well as the other incriminating circumstances appearing against the accused persons, including the blackish appearance of their palms and the unexplained injury sustained by accused Rama Chandra. The learned trial Court also rejected the defence objection regarding the informant himself having conducted the investigation, holding that his evidence received independent corroboration from the other prosecution witnesses. It further held that, in the absence of any evidence or suggestion to the departmental witnesses regarding any distinguishing mark on the aluminium wire, the defence plea that the seized wire could not be identified as electric supply line material was not sustainable. Accordingly, the learned trial Court concluded that the prosecution had proved the charge under Section 3(a) of the Orissa Electric Supply Line Material (Unlawful Possession) Act, 1988 beyond all reasonable doubt. At the stage of sentence, taking note of the absence of any previous conviction against the accused persons, the learned trial Court held that the offence fell under Section 3(a) of the said Act, applicable to first offenders. The relevant portion of the judgment of the learned trial Court is quoted herein below for the convenience of ready reference:

The appellant is aggrieved by the said judgment of conviction and order of sentence and has filed the present appeal.

It is submitted by learned counsel appearing for the appellants, Mr. Dasparida, that during the pendency of the present appeal, appellant Nos.5 and 6 stated to have expired, however, no documentary evidence has been placed on record to confirm the alleged death of appellant Nos.5 and 6. In the absence of any such material, the appeal qua them can’t be abated. Accordingly, the appeal is being considered and disposed of on merits in respect of all the appellants. 7. Subsequently, Mr. Dasparida, learned counsel appearing for the appellants, advanced his submissions on the merits of the case. He contended that the evidence of P.W.13, the informant and Investigating Officer, itself makes it clear that the aluminium wire was not recovered from the physical possession of any of the Page 7 of 17 appellants. Referring to the deposition of P.W.13, learned counsel submitted that the seized aluminium wire was found lying in bundles and in a scattered condition in the forest, whereas the appellants were allegedly apprehended in a jeep found in the vicinity. The relevant portion of the evidence of P.W.13 is reproduced herein below for the convenience of ready reference:

Learned counsel, therefore, submitted that the prosecution has failed to establish the foundational fact of possession of the stolen electric supply-line material by the appellants. According to him, the aluminium wire was recovered from the forest and not from the person or conscious possession of any of the appellants. The mere fact that the appellants were found sitting in a jeep in the vicinity of the place where the wire was lying cannot, by itself, establish their possession over the said material. It was further contended that the Page 8 of 17 prosecution had alleged theft of the aluminium wire by the appellants, but having failed to establish the said allegation, the appellants were acquitted of the charge under Sections 397/34 of the Indian Penal Code. In such circumstances, the mere presence of the appellants near the place of recovery, without any further cogent evidence establishing their conscious possession of the seized material, could not, according to learned counsel, sustain their conviction under the special statute.

Regard being had to the aforesaid submission, learned counsel drew the attention of the Court to the statutory ingredients of Section 3 of the Orissa Electric Supply Line Material (Unlawful Possession) Act, 1988, which, insofar as relevant for the present purpose, provides as follows:

It is submitted that a plain reading of the aforesaid provision makes it abundantly clear that possession of the electric supply-line material is the sine qua non for attracting the penal provision. Learned counsel contended that the statutory presumption contemplated under the provision would arise only after the prosecution first establishes that the accused was in possession of the material reasonably suspected to have been stolen or unlawfully obtained or retained. The burden thereafter may shift upon the accused to explain the lawfulness of such possession. However, in the absence of proof of possession in the first place, the statutory presumption cannot be invoked against the accused.

Learned counsel further submitted that the expression “possession” occurring in the provision cannot be understood as mere physical proximity to the place where the material happened to be found. It necessarily postulates conscious possession or, at the very least, such dominion and control over the material as would make the accused answerable for its lawful possession. In the present case, the prosecution has not brought any material on record to establish that the seized aluminium wire was under the control or dominion of any of the appellants. On the contrary, the evidence of P.W.13 clearly indicates that the wire was lying in the forest, whereas the appellants were found inside the jeep separately.

Learned counsel for the appellants further submitted that the learned trial Court, in paragraph 11 of the impugned judgment, extracted hereinabove, proceeded on an erroneous premise by placing the burden upon the appellants to explain their presence inside the forest and the alleged blackish appearance of their palms. The learned trial Court, while appreciating the prosecution evidence, observed that the appellants had never taken the plea that they were proceeding to Kaptipada through the forest road and further noted that they had offered no explanation as to how their palms had become blackish. According to learned counsel, such observations have the effect of shifting the burden of proof upon the accused, whereas the primary and fundamental obligation to establish the guilt of the accused beyond reasonable doubt always rests upon the prosecution.

He further submitted that the failure of the appellants to offer an explanation regarding their presence at the spot or the alleged blackish appearance of their palms cannot, by itself, be treated as substantive evidence of their guilt or be utilised to fill the deficiencies in the prosecution case. The prosecution must first establish, by cogent and reliable evidence, the essential ingredients of the offence with which the appellants are charged. It was accordingly contended that, as the prosecution failed to discharge its initial burden of establishing the appellants' possession of the alleged stolen electric supply-line material, the learned trial Court was not justified in relying upon the absence of an explanation from the appellants to sustain their conviction under Section 3(a) of the Orissa Electric Supply Line Material (Unlawful Possession) Act, 1988. Learned counsel, therefore, submitted that the conviction is unsustainable in law and prayed that the appellants be acquitted of the said charge.

Per contra, Mr. Mohanty, learned Additional Government Advocate appearing for the State supported the impugned judgment and order of conviction. It was submitted that the prosecution evidence, particularly the testimony of the informant-P.W.13 and the other members of the raiding party, clearly establishes the presence of the appellants in the forest during the relevant time, their apprehension in the jeep along with cutting instruments, ropes and pieces of aluminium conductor, and the seizure of the stolen aluminium wire from the immediate vicinity. Learned counsel contended that the circumstances proved on record, when considered cumulatively, establish the appellants’ involvement in the unlawful possession of the electric supply-line material. It was further submitted that the learned trial Court, upon proper appreciation of the evidence, has rightly recorded the conviction under Section 3(a) of the Act and that no interference is warranted in the present appeal.

This Court has carefully considered the rival submissions and perused the evidence on record. The principal question which falls for consideration is whether the prosecution has been able to establish beyond all reasonable doubt that the appellants were in possession of the aluminium wire allegedly suspected to have been stolen from the electric supply line. Section 3 of the Orissa Electric Supply Line Material (Unlawful Possession) Act, 1988 is attracted only when a person is found to be in possession of electric supply-line material reasonably suspected of having been stolen or unlawfully obtained or retained. Thus, proof of possession is the foundational requirement for attracting the offence contemplated under said provision.

In the present case, the evidence of P.W.13, who is the informant as well as the Investigating Officer, assumes significance. His evidence clearly indicates that the aluminium wire was found lying in the forest, partly in bundles and partly in a scattered condition. The evidence further discloses that the appellants were found inside jeep No. ORB-1168, which was stationed in the forest, and that certain articles, including hacksaws, ropes and small pieces of aluminium conductor, were recovered from the said jeep. However, there is no evidence that the aluminium wire seized from the forest was recovered from the person of any of the appellants or from the jeep in which they were found. The prosecution has, therefore, failed to establish a direct link between the appellants and the aluminium wire which constitutes the subject matter of the alleged offence.

It is true that the presence of the appellants in the forest during the night, coupled with the recovery of certain articles from the jeep, may give rise to suspicion regarding their involvement. But, suspicion, however strong, cannot substitute proof of the essential ingredient of the offence. The prosecution was required to establish that the appellants were in conscious possession of the electric supply-line material. Mere proximity to the place where the material was found, without evidence of dominion, control or conscious possession thereof, cannot by itself satisfy the statutory requirement.

This Court also finds substance in the submission of learned counsel for the appellants that the learned trial Court, while appreciating the circumstances against the appellants, proceeded to place an undue burden upon them. The learned trial Court took note of the fact that the appellants could not explained as to why they were present in the forest or why their palms appeared blackish. Such circumstances could have been considered only after the prosecution had first established the foundational facts constituting the offence. The absence of an explanation from the accused cannot relieve the prosecution of its primary obligation to prove the essential ingredients of the charge beyond reasonable doubt.

The fact that accused Rama Chandra was found to have sustained an injury and that no explanation was offered by him regarding the same also cannot, in the absence of other cogent evidence establishing the appellants' possession of the seized material, furnish a sufficient basis for recording a conviction. Similarly, the recovery of hacksaws, ropes and small pieces of aluminium conductor from the jeep, though a circumstance requiring consideration, does not by itself establish that the appellants were in possession of the aluminium wire seized from the forest.

Significantly, the appellants have been acquitted of the charge under Sections 397/34 of the Indian Penal Code. Though such acquittal by itself may not determine the charge under the special enactment, at the same time the prosecution cannot rely upon the alleged theft as an established circumstance when the same has not been proved against the appellants. The conviction under Section 3(a) of the Act must, therefore, rest upon independent proof of the statutory requirement of possession, which, for the reasons discussed above, is lacking in the present case.

On an overall assessment of the evidence, this Court is of the considered view that the prosecution has failed to establish beyond reasonable doubt that the appellants were in possession of the aluminium wire allegedly stolen from the electric supply line. The foundational requirement of Section 3 of the Orissa Electric Supply Line Material (Unlawful Possession) Act, 1988 having not been established, the subsequent burden contemplated under the provision could not have been invoked against the appellants. The benefit of the resulting doubt must necessarily go to the appellants.

Accordingly, the conviction of the appellants under Section 3(a) of the Orissa Electric Supply Line Material (Unlawful Possession) Act, 1988 cannot be sustained and is, accordingly, set aside. The appellants are acquitted of the said charge. Bail bonds if any stand discharged.

Accordingly, the Criminal Appeal is allowed.