SUBARNA DIGAL Vs. STATE
LAWS(ORI)-1973-7-19
HIGH COURT OF ORISSA
Decided on July 30,1973

Subarna Digal Appellant
VERSUS
STATE Respondents

JUDGEMENT

S. Acharya, J. - (1.) THE Petitioner stands convicted under Sections 379 and 429, Indian Penal Code, and has been sentenced to undergo R.I. for six months on each count, but the said sentences are to run concurrently.
(2.) THE prosecution case in short is that in the night of 27 -1 -1966 p.w. 1 found that two of his buffaloes purchased recently by hi were missing. He searched for the buffaloes at night, but could not get the same. Next morning he reported about the loss of the buffaloes to the Sarpanch. The Sarpanch called some of the villagers and they all searched for the missing buffaloes. On following the foot -prints of human beings specially one bearing 12 fingers, and the hoof marks of buffaloes, they went upto the Mandika forest where they found the carcasses of two buffaloes tied to a mango tree in the forest without their hides, skins and horns. A written report signed by p.w. 1 was treated as F.I.R. and on that the investigation started. The police submitted charge sheet against four accused persons for offences under Sections 379 and 429, Indian Penal Code. Out of the four accused persons Kasta Digal was acquitted in the trial Court and the Petitioner along with two other accused persons were found guilty for and convicted under the aforesaid offences. Only the Petitioner out of the three convicted persons preferred an appeal and the Appellate Court upheld the conviction of the Petitioner for the offences stated above. The Petitioner has consistently denied his complicity in the offence.
(3.) IT is urged by Mr. Rath, the learned Counsel for the Petitioner that on the prosecution evidence the offence under Sections 379 and 429, Indian Penal Code are not at all made out against the Petitioner. He, in this connection, contends that there is absolutely nothing in the prosecution evidence to show that the Petitioner committed theft of the buffaloes or that he killed the same and that the hides, which were allegedly brought by the Petitioner to the house of p.w. 2 in the night of occurrence were stolen properties. He contends that as the prosecution has not been able to establish that the said two hides were stolen properties no presumption under Section 114 of the Evidence Act can be drawn against the Petitioner. There is absolutely no evidence on record to show that the Petitioner committed theft of the buffaloes and/or that he killed the same. The prosecution has of course established that the Petitioner came along with the other accused persons to the house of p.w. 2 with two hides which were later seized by the police from the house of p.w. 2. P.W. 2 has stated that this Petitioner along with the other accused persons came in the night of occurrence and left those two hides in front of her house. These two hides, as seen from the evidence of p.w. 8, were recovered and seized from a pit near about the house of p.w. 2. There is nothing on record to show that the said two hides were actually of the two buffaloes belonging to p.w. 1 stolen in the night of occurrence. After a full -dress argument by counsel appearing for both the parties and after the evidence on record was fully considered Mr. Patnaik, the learned Counsel for the State, very fairly conceded that the prosecution could not establish beyond reasonable doubt that the said two hides recovered in this case were of the two buffaloes belonging to p.w. 1. He further conceded that on the failure of the prosecution to establish that the said two hides were stolen properties, no presumption under Section 114 of the Evidence Act could be drawn in this case against the Petitioner. Thus on the above facts, premises and well -founded concessions there is no doubt that the above -mentioned two offences, of which the Petitioner stands convicted, are not established against him beyond reasonable doubt, and as such he is liable to be acquitted of the same. On the above discussion and consideration, the conviction of the Petitioner under Sections 379 and 429, Indian Penal Code and the sentences passed against him thereunder are set aside, and he is acquitted of the same.;


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