Delhi District Court
State vs Salim on 25 November, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No.DLCT01-002346-2017
SC No.117/2017
FIR No.655/2016
U/s 394/397/302/411/34 IPC
P. S. Sarai Rohilla
STATE VERSUS SALIM
(i) SC No. of the case : 647/2017
(ii) Date of commission of offence : 22.10.2016
(iii) Name, parentage and address : Salim
of accused S/o Sh. Mukim
R/o Jhuggi No.29,
Furkaniya Masjix,
Shahzadabag,
Inderlok, Delhi
(iv) Offences complained of : 394/397/302/411/34
IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Acquittal
(vii) Date of such order : 25.11.24
Date of Institution : 04.02.2017
Page 1 of 67
SC No.117/2017
FIR No.655/2016
P. S. Sarai Rohilla
State vs. Salim
Date of Judgment reserved on : 07.11.2024
Date of Judgment : 25.11.2024
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sanjeev vide complaint Ex.PW5/A. The complainant is a footpath vendor at Sadar Bazar. He went to house of his aunt / Bua and with the son of his aunt he went to Shanti Nagar. At about 8 PM on 22.10.2016 at Gupta Complex, Inderlok at a small distance from Sanjay Theka they were standing near the park. The complainant purchased half bottle of Royal Stag and when he was returning towards Sanjay then he had seen that two boys had caught Sanjay and one of the boy was hitting Sanjay with a knife. One of the boy was aged about 10-12 years and other boy was aged about 17-18 years. The boy who was hitting Sanjay with knife was aged about 20-22 years. Sanjay was shouting. When the complainant shouted then three boys ran away leaving Sanjay at the spot. Sanjay had told to complainant that those boy had snatched his purse and mobile phone and hit him with knife. The complainant brought Sanjay near the road. The complainant left Sanjay near the road and Page 2 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim went in search of an auto towards Furkaniya Masjid. When he returned then he found one lady Sajida Begum who told the complainant that the injured was taken by PCR to hospital.
Police reached at the spot. The complainant went with the police to Acharya Shri Bhikshu Hospital where the injured was treated. FIR was registered in the matter and police has investigated the case. DD No.2PP dated 23.10.2016 was registered in the matter. On 23.10.2016 the injured Sanjay had expired. With the help of secret informer suspect JCL Aftab @ Kana was caught and the JCL had made a disclosure statement in presence of his mother Armana. He had disclosed that he used to sell empty liqour bottles at Gupta Complex and many times he had seen one person Yadi and other person Salim snatching money from people and enjoying with that money. JCL came on asking of accused Yadi at that place. They had snatched mobile and purse of the victim Sanjay and when victim had protested then Salim had hit the said person with knife. On identification by JCL Aftab the suspect JCL Asif @ Yadi was apprehended in presence of his mother Zarina. Disclosure statement of JCL Asif @ Yadi was recorded. From the information received after such investigation accused Salim was arrested behind the Furkaniya Masjid from Shahjada Bagh, Inderlok, Delhi near Platform No.1 Dayabasti Railway Station.
Page 3 of 67 SC No.117/2017 FIR No.655/2016P. S. Sarai Rohilla State vs. Salim Rs.250/- was recovered from his possession which was looted from victim. A knife was seized from the jhuggi of accused Salim which was used by him in the commission of offence. The blood stained clothes of the accused were also seized which were grey coloured T-shirt and lower of black colour. The purse of the victim was also seized from the jhuggi which was having I card, Aadhaar Card and 12 visiting cards of the deceased. All the accused were identified by the complainant in judicial TIP. The phone of deceased was recovered from JCL Aftab matching the IMEI number and the SIM which belong to the deceased.
2. Charge-sheet was filed. Cognizance of the offence was taken and charge was given to the accused Salim under Section 302/392/394/397/34 IPC and further also under Section 411 IPC and Section 25 of Arms Act, 1959. Prosecution has led PW-1 to PW-24 as prosecution evidence against the accused. The statement of accused under Section 313 Cr. P. C. was recorded on 25.07.2024 and the accused has preferred to lead evidence in defence. Accused has led one evidence in defence who is DW-1 and they are brother-in-law of each other. Defence evidence was closed.
Page 4 of 67 SC No.117/2017 FIR No.655/2016P. S. Sarai Rohilla State vs. Salim
3. Final arguments are heard on behalf of both the parties and record perused.
4. Learned Counsel for the accused has relied on the following citation:
(i) Krishan vs. State of Haryana Criminal Appeal No.2351 of 2011 decided on 25.01.2024.
5. The accused person were charged under Section 411 IPC.
The necessary ingredients of which are detailed in the citation titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal No.153 of 2022.
13. Section 411 IPC:
"411. Dishonestly receiving stolen property.- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
The penal Section extracted above can be broken down into four segments namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. Having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
14. "Dishonestly" is defined under Section 24 of the IPC as, "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The key ingredient for a crime is, of course, Mens Rea. This was nicely explained by Justice K. Subba Page 5 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim Rao in the case of Dr. Vimla v. Delhi Administration4 in the following paragraphs: -
"9A. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of a recognized High School that he was of good character and had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed:
"Intending to defraud means, of course, something more than deceiving." He illustrated this by the following example: "A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seams to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would be to the loss or detriment of B, A intends to defraud B." The learned Chief Justice indicated his line of thought, which has some bearing on the question now raised, by the following observations:
"I may observe, however, in this connection that by Section 24 of the Code person does a thing dishonestly who does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud."
But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114:
"I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its bye-laws, it is induced to declare that certain Page 6 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefits of Matriculation."
Boddam, J., agreed with the learned Chief Justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second the intention to expose some person either to actual injury or risk of possible injury; but the learned Judges were also inclined to hold on the analogy of the definition of "dishonestly" in Section 24 of the Code that intention to secure a benefit or advantage to the deceiver satisfies the second condition."
15. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable.
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21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove, "5. (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was Page 7 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim stolen property...."
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23. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens Rea is clearly not established for the charge under Section 411 of IPC. The Prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing."
24. In a case like this, where the fundamental evidence is not available and the law leans in appellant's favour, notwithstanding the concurrent finding, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co7., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.
6. It is the case of the prosecution that from the possession of the accused on 23.10.2016 at platform No.1 Daya Basti Railway Station a sum of Rs.250/- was recovered as stolen property belonging to the deceased. The eye witness to the case is PW-5 who is cousin brother of the deceased. The mother of the deceased is his Bua. It is deposed by PW-5 that when he had reached near Sanjay the deceased then the deceased was Page 8 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim bleeding who had put his hand on his injuries. The deceased Sanjay had informed PW-5 that his mobile and purse were robbed by accused and his associates. The accused has admitted under Section 294 Cr. P. C. the following documents:
A. CAF and CDRs pertaining to mobile No.9268800215 for the period w.e.f. 15.10.2016 to 25.10.2016 of TATA Tele Services Ltd.
B. CAF and CDRs pertaining to mobile No.7838661933 for the period w.e.f. 15.10.2016 to 25.10.2016 of Vodafone Mobile Services Ltd. C. Postmortem report dated 25.10.2016 conducted by Dr. Ashok Sagar (SR), Aruna Asaf Ali Hospital, of the deceased Sanjay.
7. Vide Ex.PW19/G which is seizure memo of Rs.250/-
recovered from the accused Salim. A total of Rs.820/- was robbed from the deceased and Rs.400/- came in the share of accused Salim. Accused Salim had spent Rs.150/- and handed over Rs.250/- to the Inspt. Devender Singh Rathi. In the charge- sheet it is stated by the prosecution that the robbed purse was recovered from the slum/jhuggi of the accused and in the said purse ID Card, Aadhaar Card and 12 Visiting Cards of the deceased were found. Hence Rs.250/- was not recovered from Page 9 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim the purse but they were allegedly handed over by the accused during inquiry by Inspt. Devender Singh Rathi/PW-21. The alleged recovery was effected on 23.10.2016. The accused Salim was apprehended by PW-21 at the instance of CCL "A @ K" and CCL "A @ Y". Hence on the basis of disclosure statement of two CCL accused Salim was arrested. Rs.250/- was recovered from the possession of accused Salim and after that at the instance of both the CCL and the accused they together reached at jhuggi of CCL "A @ Y". Hence Rs.250/ was recovered from accused Salim from the spot of arrest. Except disclosure statement of co-accused/CCL and the alleged disclosure statement by accused Salim there is no evidence available with the prosecution that Rs.250/- recovered from accused Salim were earlier in possession of deceased Sanjay. Since the amount of Rs.250/- is such a small amount so that it could be available with any person. Prosecution has to show by some evidence to connect Rs.250/- with deceased Sanjay. The then SI Vishwanath/PW-19 has deposed that Rs.250/- was recovered from the possession of accused Salim. However there is absence of any distinct mark of identification on such notes or the denomination with which such currency notes could be connected with accused Salim. Similarly the then HC Shelesh Sharma /PW-20 has failed to point out any such distinct mark Page 10 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim on recovery of Rs.250/- if they ever belonged to the deceased. Hence the prosecution has failed to prove that the alleged stolen Rs.250/- recovered from accused Salim was in possession of deceased Sanjay before it has reached in possession of accused Salim. In absence of the same it cannot be said that the accused Salim has knowledge that the property was stolen property. Hence doubt has arisen in the case of the prosecution in this regard.
8. To prove ingredients of Section 392/394/397 IPC, the prosecution has to prove necessary ingredients. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or Page 11 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When Page 12 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
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396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery Page 14 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with Page 15 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC
- 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot Page 16 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person:
vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon Page 17 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section
397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person Page 18 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision.
But the other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC Page 19 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim (Cri) 687 : AIR 2004 SC 1253]."
9. The first ingredient the prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v. State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:Page 20 of 67 SC No.117/2017 FIR No.655/2016
P. S. Sarai Rohilla State vs. Salim
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is "robbery" if the offender at the time of committing the extortion, is in the presence of the Page 21 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.Page 22 of 67 SC No.117/2017 FIR No.655/2016
P. S. Sarai Rohilla State vs. Salim There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".Page 23 of 67 SC No.117/2017 FIR No.655/2016
P. S. Sarai Rohilla State vs. Salim
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for. Xxxxxxx
10. It has to be proved by the prosecution that the accused Salim alongwith two JCL/CCL had committed offence under Section 397 IPC. It is settled law that liability under Section 397 IPC is not a joint liability but an individual liability. Section 397 IPC is attracted only against the person/ accused who had committed a particular act.
11. PW-5 has deposed that on 22.10.2016 after purchasing liquor when he came back at road then he saw that two boys were apprehending Sanjay the deceased by their hands and accused Salim present in the court and correctly identified in the Court was stabbing Sanjay on chest and abdomen. On looking at this PW-5 has shouted for help and ran towards Sanjay the deceased to save him. The accused on seeing the PW-5 coming towards them had fled away from the spot. The associates of the Page 24 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim accused were about 12-13 years and 18-19 years. PW-5 reached near Sanjay the deceased who was bleeding from his injuries. Deceased Sanjay had put his hands on his injuries who informed PW-5 that his mobile and purse was robbed by the accused and his associates. Somehow PW-5 had brought the deceased Sanjay towards the main road and went away in search of auto. He could not find auto and it took him about 15- 20 minutes to bring the auto. When he returned at the place where he had left Sanjay then one lady had informed him that police had taken Sanjay the deceased to the hospital. Other Police personnel reached at the spot who took PW-5 to Acharya Bikshu Hospital where Sanjay was found with the police. PW-5 gave his statement to the police vide PW5/A. PW-5 had returned back with the police at the spot and the site plan Ex.PW5/B was prepared at his instance. Sanjay was declared dead by the hospital vide Ex.PW5/C. He had identified the dead-body of deceased Sanjay vide memo Ex.PW5/D and brother of the deceased Sh. Ajay/PW-7 had also identified the dead-body vide the same memo. PW-7 had received the dead- body vide memo Ex.PW5/D1. The PW-5 has identified the accused at Tihar Jail vide TIP proceedings Ex.PW5/E. One foul smelling blood stained shirt, baniyan and handkerchief were correctly identified by PW-5 as they belonged to deceased Page 25 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim Sanjay and worn by him at the time of incident and the same are Ex.P5/P1 which were in parcel No.1. Another parcel No.2 was found containing blood stained pant, underwear which were correctly identified by PW-5 as they belonged to Sanjay worn by him at the time of incident which are Ex.P5/P2.
12. It is suggested to PW-5 in cross examination that the deceased was already having stab injuries before reaching of PW-5 at the spot. It is deposed by PW-5 that he was not having any mobile phone on the date of incident. It is admitted that he had not seen culprits while robbing mobile phone of deceased Sanjay. It is admitted as correct that it was slightly dark. However it is deposed voluntarily that there were street lights which were on and emitting light. It is admitted as correct that he had not seen the clear faces of persons who were causing injuries on the deceased Sanjay. It is deposed by PW-5 voluntarily that one lady had called the police. It is deposed by PW-5 in cross examination that he had seen accused Salim stabbing the deceased Sanjay. In cross examination by the learned Addl. PP for the State the PW-5 has tried to go back to his earlier deposition that he had not seen clear faces of person who were causing injuries and it is further deposed that he had seen the accused Salim at the spot stabbing his cousin Sanjay. Hence contradictory statements are made by PW-5 about Page 26 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim stabbing and robbing of deceased. It has become more doubtful due to the fact that it took PW-5 15-20 minutes to search for Auto to take victim Sanjay to Hospital though he could have made phone call from the nearby Liquor Shop or from some passerby to police or the ambulance.
13. PW-11 Dr. Ritesh Ranjan had examined the deceased Sanjay who was brought conscious and irritable at the hospital and on local examination following injuries were found on his person:
1. One clean cut incised wound over left side of chest about 3 cm from midline in 3rd intercostal space about 3 cm x 1 cm;
2. One clean cut incised wound over right anterior axilary line in 7th intercostal space about 1 cm x .5 cm x .5 cm;
3. One clean cut incised wound over right mid clavicular line about 0.5 x 0.5 x.5 cm in 7th intercostal space; and
4. Abrasions over both the sides of chest.
14. It is deposed that the patient was declared clinically dead at 10:40 PM on 22.10.2016 and the death summary is Ex.PW11/A and the MLC of the patient is Ex.PW10/A. It is deposed that during treatment condition of the patient was deteriorated and Page 27 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim he could not be revived. PW-10 Dr. Sunil Kumar had examined the patient at 9:17 PM with alleged stab history and three injuries were reported at intercostal region and multiple abrasion all over the chest. After final treatment he was referred to Surgery Department vide MLC Ex.PW10/A. Cross examination of PW-10 and PW-11 is nil after giving of opportunity.
15. PW-12 learned MM-01 Mahila Court (Central) Tis Hazari Courts, Delhi had conducted the judicial TIP of accused Salim. TIP application Ex.PW12/B was moved by the IO and the TIP report is Ex.PW12/A. Accused was correctly identified at Jail No.1 on 02.11.2016 and the detailed TIP proceedings of accused Salim is Ex.PW5/E. Copy of the TIP proceedings was provided to the IO vide Ex.PW12/C. The cross examination of PW-12 was nil after giving opportunity.
16. PCR call was made by PW-9 which was recorded vide Ex.PW13/A vide DD No.27PP dated 22.10.2016 at around 8:12 PM and the proceedings were marked to ASI Rahul Singh. PW-9 was going to Acharya Bikshu Hospital with her adopted son aged about 14 years to get her son treated. When she had reached Cooler Market, Inder Lok at about 8:00 PM then she Page 28 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim saw one person crossing the road who was badly injured and blood oozing from his body. PW-9 got the injured seated on a cart/ theli and made a call at 100 number. Cross examination of the witness is nil after giving opportunity.
17. The accused has raised doubt in deposition of PW-5 regarding witnessing of stabbing by accused. PW-5 in his cross examination dated 10.07.2019 has deposed that the victim Sanjay was not visible from the shop of liquor as the victim was standing at the corner of the car. It is deposed by PW-5 that he did not have mobile phone on the date of incident. It is admitted as correct by PW-5 that he had not seen the culprits while the accused had robbed mobile phone from the victim Sanjay. It is admitted as correct that it was slightly dark. However it is deposed that the public lights were available and there was sufficient light. Learned Counsel for the accused has submitted that the PW-5 had not seen snatching of mobile phone of the deceased by the accused person. When mobile phone was already snatched and articles were also robbed from the victim Sanjay then there was no reason for the accused persons to stand at the spot to be seen by PW-5. There is merit in the above submission made by the learned Counsel for the accused that why after robbery being committed the accused person Page 29 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim would be standing at the spot. It is further deposed by PW-5 as correct that he had not seen clear faces of the person who were causing injuries to the deceased Sanjay. However learned Addl. P. P. for the State while cross examining the witness has brought on record the deposition of PW-5 that he had seen the face of Sanjay properly at the spot and also the accused Salim present at the spot stabbing his cousin Sanjay. This is not in the nature of clarification. He explained his earlier deposition that he could not understand the question put to him and he had replied inadvertently. This cross examination does not help the case of the prosecution and the admission once brought on record cannot be retracted unless there is other sufficient evidence brought on record to the contrary. No other new evidence is brought in cross examination except retracting the earlier admission/deposition made by PW-5. Hence it has come on record that PW-5 has not seen the face of the person who were causing injuries on the deceased Sanjay. It has also come on record that PW-5 could not have seen the deceased from the liquor shop. In the site plan Ex.PW5/B there is Gupta Complex between point A and B and PW-5 had not seen the accused or the victim from point B to point A. Now the PW-5 has deposed that he has not seen the accused stabbing the victim and therefore PW-5 had not seen the stabbing of victim from point Page 30 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim C. Hence the prosecution has to prove on record how the accused are identified and related to the offence. The PW-5 having not seen the accused could not have identified the accused in TIP proceedings before PW-12. The police had not prepared any sketch memo nor recorded any identity mark from which the PW-5 could have identified the accused. Therefore the correct identification of accused by PW-5 in TIP proceedings cannot be relied upon which in itself is a weak type of evidence.
18. Now the prosecution has to prove that how the accused was linked with the offence. It is submitted by learned Counsel for the accused that the present accused was arrested only on the basis of the disclosure statement made by the juvenile/ JCL in the case. It is settled law that merely on the basis of disclosure statement of co-accused another co-accused cannot be convicted in the case. It was held in case titled Manoj Kumar Soni vs. State of MP 2023 SCC Online SC 984 that disclosure per se are not so strong a piece of evidence sufficient on its own and without anything more to bring home charges beyond reasonable doubt. The disclosure statements of co-accused lent assurance to other evidence against a co-accused. The same can be used merely to support the conviction. The proper approach Page 31 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim is to consider whether other evidence is satisfactory which may sustain the charge framed against the said accused persons. The disclosure statement of one accused cannot be accepted as proof of other co-accused having knowledge of the stolen goods. The story of the prosecution should be very convincing and the testimony of official witness should be notably trustworthy. The relevant para of the citation is reproduced hereasunder:
2023 SCC OnLine SC 984 from Hon'ble Supreme Court of India in Criminal Appeal No. 1030/2023 Manoj Kumar Soni Versus State of Madhya Pradesh Disclosure Statements
21. The facts of the case reveal that all the accused persons made disclosure statements to the I.O. whereupon recovery of money, jewellery, etc. was effected. Although it is quite unusual that all five accused, after being arrested, would lead the I.O. to the places for effecting recovery of the stolen articles, we do not propose to disbelieve the prosecution plea only on this score. Manoj's involvement was primarily based on the disclosure statements made by co-accused Suleman and Jaihind where they admitted to selling the stolen articles to him and a similar statement made by Manoj himself which led to recovery under Section 27, Evidence Act. Similarly, both the courts below, in convicting Kallu, largely relied upon the disclosure statement made by Kallu himself as well as co-accused Jaihind, who confessed to giving Rs. 3,000.00 to Kallu from the stolen money and storing a country-made pistol along with three cartridges at his house/tapra.
22. A doubt looms : can disclosure statements per se, unaccompanied by any supporting evidence, be deemed adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the Page 32 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim charges beyond reasonable doubt.
23. The law on the evidentiary value of disclosure statements under Section 27, Evidence Act made by the accused himself seems to be well-established. The decision of the Privy Council in Pulukuri Kotayya v. King-Emperor4 holds the field even today wherein it was held that the provided information must be directly relevant to the discovered fact, including details about the physical object, its place of origin, and the accused person's awareness of these aspects. The Privy Council observed:
The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into s. 27 something which is not there, and admitting in evidence a confession barred by s. 26. Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.
24. The law on the evidentiary value of disclosure statements of co-accused too is settled; the courts have hesitated to place reliance solely on disclosure statements of co-accused and used them merely to support the conviction or, as Sir Lawrence Jenkins observed in Emperor v. Lalit Mohan Chuckerburty5, to "lend assurance to other evidence against a co-accused". In Haricharan Kurmi v. State of Bihar6, this Court, speaking through the Constitution Bench, elaborated upon the approach to be adopted by courts when dealing with disclosure statements:
13. ...In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right.
25. In yet another case of discrediting a flawed conviction under Page 33 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim Section 411, IPC, this Court, in Shiv Kumar v. State of Madhya Pradesh7 overturned the conviction under Section 411, declined to place undue reliance solely on the disclosure statements of the co- accused, and held:
24. ..., the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens rea is clearly not established for the charge under Section 411 IPC. The prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing." [William Shakespeare, Merchant of Venice, Act 1 Scene 1.]
26. Coming to the case at hand, there is not a single iota of evidence except the disclosure statements of Manoj and the co-
accused, which supposedly led the I.O. to the recovery of the stolen articles from Manoj and Rs. 3,000.00 from Kallu. At this stage, we must hold that admissibility and credibility are two distinct aspects and the latter is really a matter of evaluation of other available evidence. The statements of police witnesses would have been acceptable, had they supported the prosecution case, and if any other credible evidence were brought on record. While the recoveries made by the I.O. under Section 27, Evidence Act upon the disclosure statements by Manoj, Kallu and the other co-accused could be held to have led to discovery of facts and may be admissible, the same cannot be held to be credible in view of the other evidence available on record.
27. While property seizure memos could have been a reliable piece of evidence in support of Manoj's conviction, what has transpired is that the seizure witnesses turned hostile right from the word 'go'. The common version of all the seizure witnesses, i.e., PWs 5, 6, 11 and 16, was that they were made to sign the seizure memos on the insistence of the 'daroga' and that too, two of them had signed at the police station. There is, thus, no scope to rely on a part of the depositions of the said PWs 5, 6, 11 and 16. Viewed thus, the seizure loses credibility.
Page 34 of 67 SC No.117/2017 FIR No.655/2016P. S. Sarai Rohilla State vs. Salim
28. This Court in Sanjeet Kumar Singh v. State of Chhattisgarh8 held:
18. But if the Court has -- (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats.
29. The testimony of the seizure witnesses, we are inclined to the view, is the only thread in the present case that could tie together the loose garland, and without it, the very seizure of stolen property stands falsified. We cannot overlook the significance of the circumstance that all four independent seizure witnesses (PWs 5, 6, 11, and 16), who were allegedly present during the seizure/recovery of the stolen articles from Manoj's house, having turned hostile and not support the prosecution case, the standalone evidence of the I.O. on seizure cannot be deemed either conclusive or convincing; the recoveries made by him under Section 27, Evidence Act must, therefore, be rejected.
30. The material inconsistency in Kallu's case is the contradiction in the depositions of the I.O. and the complainant. The I.O. deposed that he, upon the disclosure by co-accused Jaihind, successfully recovered a sum of Rs. 3,000.00 (comprised of three one-thousand-rupee notes), seized the same in the presence of witnesses, and prepared a seizure panchnama; however, when one looks at the complainant's version, it is wholly inconsistent. She stated in her deposition that the accused persons did not take away Page 35 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim any one-thousand-rupee note from her house. It does not escape our attention that the conviction of Kallu entirely hinges on the alleged recovery of Rs. 3,000.00 and both the courts below heavily relied on this aspect to convict him of criminal conspiracy. However, it does not appear from a perusal of the Trial Court's judgment as to who exactly the seizure witnesses were in whose presence Rs. 3,000.00 was recovered although it does seem that none of the several prosecution witnesses, who were witnesses of arrest and seizure, had supported the prosecution case. Although there could be evidence aliunde to establish the guilt of the co- accused Jaihind, Arif and Suleman, there was absolutely no evidence worthy of consideration which could have been relied on to convict Manoj and Kallu.
31. It is clear as crystal that the sole connecting evidence against Manoj and Kallu was the recovery based on their disclosure statements, along with those of the other co-accused but this evidence, in our opinion, is not sufficient to qualify as "fact ... discovered" within the meaning of Section 27. Having regard to such nature of evidence, we view the same as wholly untrustworthy.
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19. The disclosure statement of accused Salim is Ex.PW19/F and where it is disclosed by accused Salim that he can get recovered the part of robbed money, the clothes which the accused was wearing at the time of committing the offence, weapon of offence i.e. knife/ chhura. It is already held above that Rs.250/- without any special identification cannot be connected with the offenc in the case. The clothes which were worn by the accused in any case belongs to the accused and there is no identification of clothes by their colour in deposition Page 36 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim of any other witness then it cannot be said that such clothes were worn by the accused Salim while allegedly committing the offence of robbery and murder. The weapon of offence is knife/chhura Ex.PW19/P-3. It is deposed by PW-20 that from the house of accused Salim one knife/chhura was got recovered from the slab of the room on first floor of the house of the accused Salim. It is deposed by PW-20 that the knife was kept in a plastic bag and sketch of knife was prepared vide Ex.PW19/J. To the contrary PW-20 ASI Shelesh Sharma has deposed in cross examination dated 29.09.2024 that the sketch of knife was prepared by the IO at platform No.1 of Daya Basti Railway Station and PW-20 had signed the said sketch. From Daya Basti Railway Station they went to the jhuggi of accused Salim at the distance of about 500 meters where he had reached about 6:00 PM on 23.10.2016. However if knife had been recovered at the jhuggi of accused Salim from the first floor of his house then it is not clear that how the sketch of knife could be prepared in the presence of PW-20 at Platform No.1 Daya Basti Railway Station as the police had visited first at Daya Basti Railway Station then at the jhuggi of accused Salim. Hence the recovery of knife from accused Salim has become doubtful and the same cannot be relied upon. Further, when the disclosure was allegedly made by accused Salim at Platform Page 37 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim No.1 Daya Basti Railway Station that he can get recovered articles to be made admissible under Section 27 of Indian Evidence Act then the police had sufficient time to join public witness before making the search and recovering the articles which is not done and hence the recovery has become doubtful. The disclosure statement of the accused is Ex.PW19/F. The same is recorded in the form of narrative and it appears that the same is not written in the exact words which was allegedly stated by the accused. The alleged confession is in the nature of extra judicial confession. The accused was not a free man at the time of making this confession. It is settled law that when the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused then such statement must be regarded as involuntary. Extra judicial confession is a weak piece of evidence and the same can be easily procured when the direct evidence is not available. It is important to note that before whom it was made. Rule of Prudence requires that wherever possible it should be corroborated by an independent evidence. In the present case the confession was made before the police officer and the same can be considered for a limited purpose of Section 27 of Indian Evidence Act, 1872. Other then this in the disclosure statement the accused had stated that he can get the Page 38 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim clothes recorded from his room. However in view of the facts discussed above the recovery of knife itself is doubtful. The relevant citation titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3) which has laid down at relevant para No.51 to 76 the relevant law in this regard is reproduced hereasunder:
51. It is the case of the prosecution that on 24.01.2010 the accused appellant was picked up by the investigating officer from nearby a bus stand and was arrested in connection with the alleged crime.
After the arrest of the accused appellant and while he being in the custody at the police station, he is said to have on his own free will and volition made a statement that he would like to point out the place where he had hidden the weapon of offence (Banka) and his bloodstained clothes after the commission of the alleged crime. According to him, after such statement was made by the accused appellant, he along with his subordinates set forth for the place as led by the accused. There is something very unusual, that we have noticed in the oral evidence of the investigating officer. According to him while the police party along with the accused were on their way, all of a sudden, the investigating officer realized that he should have two independent witnesses with him for the purpose of drawing the panchnama of discovery. In such circumstances, while on the way the investigating officer picked up PW2, Chhatarpal Raidas and Pratap to act as the panch witnesses. According to the investigating officer the accused led them to a coriander field and from a bush he took out the weapon of offence (Banka) and the bloodstained clothes. The weapon of offence and the bloodstained clothes were collected in the presence of the two panch witnesses and the panchnama Exh. 5 was accordingly drawn. The weapon of offence and the blood stained clothes thereafter were sent for the Serological Test to the Forensic Science laboratory. We are of the view that the Courts below committed a serious error in relying upon this piece of evidence of discovery of a fact, i.e., the weapon & clothes at the Page 39 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim instance of the accused as one of the incriminating circumstances in the chain of other circumstances. We shall explain here below why we are saying so.
52. Section 27 of the Evidence Act, 1872 reads thus:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered Page 40 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
54. The reason why we are not ready or rather reluctant to accept the evidence of discovery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at the police station. The second reason to discard the evidence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discovery is that although one of the panch witnesses PW2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.
55. Applying the aforesaid principle of law, we find the evidence of the investigating officer not only unreliable but we can go to the extent to saying that the same does not constitute legal evidence.
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56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place.
57. Let us see what has been exactly stated in the discovery panchnama (Exh.5) drawn on 24.01.2010. We quote the relevant portion as under:
"Today on 24.1.2010, the arrested accused Ramanand alias Nandlal Bharti son of Late Shri Gobre, resident of Naamdar Purwa, Hamlet Amethi, original resident of village Basadhiya, Police Station Isanagar, District Lakhimpur Kheri has been taken out of the lockup, taken in confidence and then interrogated by me the Station House Officer Yogendra Singh before Hamrah S.S.I. Shri Uma Shankar Mishra, S.I. Shri Nand Kumar, Co. 374 Page 42 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim Mo. Usman, Co. 598 Prabhu Dayal, Co. 993 Santosh Kumar Singh, Co. 394 Shrawan Kumar then he confessed the offence occurred in the incident and weepingly said in apologizing manner that, "I myself have committed this crime to get government grant for being a rich man and to marry Km. Manju D/o Kanhai, resident of Pakadiya, Police Station Tambaur, District Sitapur regarding whereof the detailed statement has been recorded by you. The baanka used in the incident and the pant shirt, on which blood spilled from the bodies of deceased persons got stained and which had been put off by me due to fear, have been kept hidden at a secret place by me which I can get recovered by going there."
In expectation of recovery of murder weapon and bloodstained clothes, I the Station House Officer Yogendra Singh alongwith aforesaid Hamrahis departed carrying accused Ramanand alias Nandlal Bharti by official jeep UP70AG0326 alongwith driver Raj Kishor Dixit for the destination pointed out by the accused, vide Rapat No. 7 time 07.15..." [Emphasis supplied]
58. We shall now look into the oral evidence of the PW7, Investigating Officer wherein, in his examination in chief, he has deposed as under:
"In January 2010 I was posted as Station House Officer, Kotwali Dhaurahara. On 22.1.10, I myself had taken the investigation of aforesaid case. On that day I had copied chik, rapat and recorded the statements of chik writer H. Constable Dhaniram Verma and complainant of the case. After recording the statement of complainant of the case Shambhu Raidas I inspected the occurrence spot on his pointing out and prepared the site plan which is present on record; on which Exhibit Ka6 has been marked. And I had also recorded the statement of hearsay witnesses Ahmad Hussain and Nizamuddin. On 23.1.10, I recorded the statements of witnesses Kshatrapal, Rustam Raidas. On 24.1.10, I arrested accused Ramanand and recorded his statement and when he expressed that he may get recovered the murder weapon used in the incident, I recovered the murder weapon baanka before the witnesses on his pointing out; which had been sealedstamped at the spot and its recovery memo had been prepared at the spot itself, which is present on record as Exhibit Ka5...." [Emphasis supplied]
59. We shall also look into the oral evidence of the PW6, Uma Page 43 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim Shankar Mishra who at the relevant point of time was serving as a SubInspector Chowki Incharge Bahjam, Police Station. It appears that the PW6 had also participated in the proceedings of discovery panchnama. He has deposed in his examination in chief as under:
"On 24.11.2010, I was posted at Police Station Dhaurahara. That day, Ramanand S/o Gobre Rio Naamdar Purwa, Police Station Dhaurahara, domicile of village Basadhiya, Police Station Isha Ganj, District Kheri, the arrested accused of Crime No. 49/10 U/S 302 State versus Ramanand alias Nandlal Bharti, was taken out of male lock up by the then Incharge Inspector and followers S.I. Nand Kumar, Co. Mo. Usman, Co. Prabhu Dayal, Co. Santosh Kumar Singh and Co. Shravan Kumar, and interrogated by the Incharge Inspector in my presence, during which he confessed and told that he would get recovered the murder weapon used in the murder and his blood stained pantshirt which he had kept hidden at a secret place. On this, expecting the recovery of murder weapon and blood stained clothes, the SHO along with followers and force, carrying accused Ramanand with him, departed on an official jeep ~ vide GD No. 7 time 7:15 a.m dated 24.01.2010. On the way, he picked up public witnesses Chhatrapal S/o Rameshwar and Pratap S/o Asharfi Lal, both residents of Naamdar Purwa, Hamlet Amethi for the purpose of recovery."
[Emphasis supplied]
60. From the aforesaid two things are quite evident. In the original panchnama (Exh.5), the statement said to have been made by the accused appellant figures, however, in the oral evidence of the PW7, investigating officer & PW6, Sub Inspector the exact statement has not been deposed, more particularly when it comes to the authorship of concealment. The contents of the panchnama cannot be read into evidence as those do not constitute substantive evidence.
61. Further, the examination in chief of the PW6, Sub Inspector and PW7, investigating officer does not indicate that they were read over the panchnama (Exh.5) before it was exhibited, since one of the panch witnesses was not examined and the second panch witness though examined yet has not said a word about the proceedings of the discovery panchnama. Everything thereafter fell upon the oral evidence of the investigating officer and the Sub Inspector (PW6).
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62. In the aforesaid context, we may refer to and rely upon the decision of this Court in the case of Murli v. State of Rajasthan reported in (2009) 9 SCC 417, held as under:
"34. The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box......." [Emphasis supplied]
63. One another serious infirmity which has surfaced is in regard to the authorship of concealment by the person who is said to have discovered the weapon.
64. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra: AIR (1976) SC 483
65. Two conditions for application -
(1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered - Earabhadrappa v. State of Karnataka: AIR (1983) SC 446"
66. We may refer to and rely upon a Constitution Bench decision of this Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph- 71 explains the position of law as regards the Section 27 of the Evidence Act:
"71. The law has thus made a classification of accused persons into two: (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the Page 45 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says: "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft." [Emphasis supplied]
67. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
68. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his Page 46 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
69. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.
70. In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911, this Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement Page 47 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept.
71. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the High Court was not justified in placing reliance upon the circumstance of discovery of weapon.
72. If it is the case of the prosecution that the PW2, Chhatarpal Raidas, s/o Rameshwar Raidas had acted as one of the panch witnesses to the drawing of the discovery panchnama, then why the PW2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW6 and PW7 respectively.
73. In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha and Others v. State of Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
"18. .....It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 Page 48 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it 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, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the mostquoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with Page 49 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim understandability. 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." [Emphasis supplied]
74. Mr. Upadhyay, the learned counsel for the State would submit that even while discarding the evidence in the form of discovery panchnama the conduct of the appellant herein would be relevant under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, as this Court observed in A.N. Venkatesh vs. State of Karnataka, (2005) 7 SCC 714:
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the disclosure statement made by the accusedappellants (Exts. P15 and P16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8....." [Emphasis supplied]
75. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot Page 50 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.
76. Thus, in view of the aforesaid discussion, we have reached to the conclusion that the evidence of discovery of the weapon and the blood stained clothes at the instance of the accused appellant can hardly be treated as legal evidence, more particularly, considering the various legal infirmities in the same.
20. Another factor to be noted is that both in evidence of PW-10 and PW-11 who had examined the deceased and in whose deposition the knife is not brought into evidence. It was required from the prosecution to prove if such injuries on the body of the deceased which has come in evidence of PW-10 and PW-11 if they could be caused by the knife Ex.PW19/P-3. It has become incumbent upon the prosecution to prove that such injuries could be caused by such knife whereas no opinion was brought on record in this respect from PW-10 and PW-11 nor the knife was produced in their evidence. Another point to be noted is that PW-22 Dr. Monika Chakravarty had examined the knife and proved her report Ex.PW22/A. Learned Counsel for the accused has submitted that there was no blood Page 51 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim examination of the knife. However PW-22 has examined the blood on the basis of DNA profiling (STR Analysis), that the Allelic Data in respect of Ex.3 (blood on gauge of deceased) was found matching with DNA profile generated from Ex.1a (shirt of deceased), 2a (pants of deceased), 4a (jeans pant of JCL "A"), 5b (t-shirt of accused Salim) and 6 (knife). She has proved in her report the result of analysis that the source from Ex.3 are accounted in the Alleles from the source Ex.1a, 2a, 4a, 5b and 6. The result regarding 5b and 6 the knife pertains to the accused Salim. There is absence of evidence that knife exhibit was picked by wearing gloves or that the exhibit was not packed in polythene envelopes. It is already held above that recovery of knife from accused Salim has become doubtful and therefore it cannot be said that prosecution has proved in the evidence of PW-22 that even if there was evidence of blood of deceased on the knife then it is doubtful that this knife at all had belonged to the accused Salim. Further the seizure memo ExPW19/K of the knife does not mention that at the time of seizure there was blood stains on the knife. Therefore it cannot be said that this knife was used in commission of the crime against the deceased Sanjay.
21. Now whether it can be said that the T-shirt allegedly Page 52 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim recovered from accused Salim from his house actually belongs to accused Salim. Learned Counsel for the accused has submitted that it is highly improbable that an offender will keep hanging his blood stained clothes in his house when the offence was committed around 8:00 PM on 22.10.2016 and the seizure was made on 23.10.2016. The alleged clothes were found hanging in the jhuggi of the accused on the "Khhuti". The seizure memo Ex.PW19/L of the lower and T-shirt of accused Salim does not mention that it has any blood stains at the time of its seizure. When PW-5 has failed to state what clothes the accused was wearing and of which colour then something more is required to connect the accused with the offence in the case. No sketch of accused was prepared by the IO so that the PW-5 could have identified the accused in any manner.
22. It is deposed by PW-21 in cross examination dated 15.02.2024 that it was night time and all the shops were closed. They did not serve notice to public person for the purpose of arrest of accused Salim. The disclosure statement of accused Salim was recorded at the spot. It is admitted as correct that no public person was made witness to the recovery from the house of accused Salim. It is deposed by PW-20 in cross examination dated 29.04.2024 that no public person was present at the spot Page 53 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim at 12:30 AM on 23.10.2016. No other witness was recorded by the IO at the spot in his presence. It is deposed by PW-19 in cross examination that the accused Salim was apprehended from Platform No.1. It is noted that Investigating Team already had knowledge about the fact of place of presence of accused Salim from JCL "A" @ "Y" despite which public witness was not joined by the prosecution. PW-19 has deposed that the house of the accused Salim was at the distance of 150-200 meters from the Daya Basti Railway Station whereas contrary is deposed by PW-20 that it was away by 500 meters. PW-19 has deposed that IO had made efforts to join public person as witness at the time of recovery at the house of the accused Salim but no one had agreed to join the investigation. PW-19 has deposed at page No. 5 of his cross examination that some public person were present at the spot besides PW-5 and the informant Sanjeeda Begum. The spot was the place where the offence was committed. PW-19 had reached at the spot within 5 minutes of the information received. To the contrary PW-20 has deposed that no public person was present at the spot as it was early morning around 12:30 AM on 23.10.2016. The spot was about 2-2 and ½ KM away from the Police Post PP Inderlok. In such view of the matter the deposition of police witness as to the availability of public witness has become doubtful and Page 54 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim therefore independent corroboration is desirable in this case to corroborate and support the testimony of PW-5 and PW-20. No independent public witness had been joined in the matter. Further deposition of prosecution witness about the place where sketch of knife was prepared independent public witness is desirable not only at the place where the accused was arrested at Daya Basti Railway Station but also at the place where the recovery was effected from the house of the accused. At both the places the police had before-hand information that they are going to arrest the accused and the recovery are to be effected from such place. The Investigating Agency was in a competent position to join a public witness. PW-20 in cross examination dated 29.04.2024 has deposed that no public witness was joined before the arrest of accused at Daya Basti Railway Station. However IO had asked 4-5 public person to join as witness at Platform No.1. It is admitted by PW-21 in cross examination dated 15.02.2024 that no public witness was joined during the recovery of knife from the first floor of the house of accused Salim. To the contrary PW-19 at page 6 of his cross examination has deposed that no public person was asked to join the investigation at the time of arrest of accused at Daya Basti Railway Station. However it is deposed that IO had made efforts to join public witness. It is admitted as correct that Page 55 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim public person used to pass through the spot. PW-14 has also deposed that public person were passing from the spot when they reached at the spot. PW-20 in his examination in chief dated 29.04.2024 has deposed that no public person was present at the spot on 23.10.2016 whereas PW-5 at page 2 of his cross examination dated 10.07.2019 has denied the suggestion that no public person was walking in the park which means that public person was present in the park / at the spot. It was laid down in case titled Jaikham Khan vs. State of Uttar Pradesh in Criminal Appeal No.434-436 of 2020 decided on 15 th December, 2021 (Coram:3), the relevant para of which is reproduced hereasunder:
Supreme Court of India in case titled Jaikam Khan vs The State Of Uttar Pradesh on 15 December, 2021 (Coram:3) in CRIMINAL APPEAL NO.434 - 436 OF 2020
29. For this proposition, we may refer to the following observations of this Court in the case of Piara Singh and others v.
State of Punjab1:
"4. ....It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the court is satisfied that the evidence is credit- worthy there is no bar in the Court relying on the said evidence. ....." 1 (1977) 4 SCC 452
30. We may also refer to the following observations of this Court in the case of Anil Phukan v. State of Assam2:Page 56 of 67 SC No.117/2017 FIR No.655/2016
P. S. Sarai Rohilla State vs. Salim "3. This case primarily hinges on the testimony of a single eyewitness Ajoy PW 3. Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction.
It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. It is in the light of these settled principles that we shall ex amine the testimony of PW 3 Ajoy.
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46. It will be relevant to refer to the following observation of this Court in the case of Vadivelu Thevar & another v. The State of Madras3:
"11.....Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
3 (1957) SCR 981 (2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may Page 57 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial......"
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56. As already discussed hereinabove, since no public witness has been examined to support the said memo, the statement made therein will have to be scrutinised with greater caution and circumspection. All the statements made therein with regard to the confession of committing the crime would not be admissible in evidence. Only such information, which distinctly relates to the discovery of facts will be admissible under Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act"). The evidence of P.W.9 Brahmesh Kumar Yadav (I.O.) would reveal that immediately after the F.I.R. was lodged, he had come to the spot of incident for further investigation. According to him, the accused Nos. 1, 3 and 4 were arrested at around 2.00 a.m. on 24 th January, 2014. Even according to him, the police party was very much there at the spot. One of the alleged recoveries is from the room where deceased Asgari used to sleep. The other two recoveries are from open field, just behind the house of deceased Shaukeen Khan, i.e., the place of incident. It could thus be seen that the recoveries were made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries.
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67. According to P.W.1Ali Sher Khan and P.W.2 Jaan Mohammad, a large number of villagers had gathered at the spot after the incident. However, none of the independent witnesses have been examined by the prosecution. Since the witnesses examined on behalf of the prosecution are interested witnesses, nonexamination of independent witnesses, though available, would make the prosecution version doubtful. Reference in this respect could be placed on the following observations of this Court in the case of State of Rajasthan v. Teja Singh and others(2001) 3 SCC Page 58 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim 147:
"5. In regard to the next argument of the appellant's counsel that the High Court was wrong in assuming that other villagers were sitting with PWs 6, 7 and 9, assuming that it is an error even then there can be no doubt as could be seen from the prosecution case that other villagers whether sitting with PWs 6, 7 and 9 or not did rush to the scene of occurrence, therefore, it is clear that apart from the said eyewitnesses produced by the prosecution many other villagers would have at least seen the last part of the occurrence including the escape of the accused and the accused not being strangers to the villagers could have been easily identified by them. By not examining those independent witnesses, the prosecution has failed to produce the available independent corroborative evidence to support the evidence of interested witnesses, namely, PWs 6, 7 and 9 because of which the High Court was justified in drawing adverse inference against the prosecution..."
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71. Insofar as the reliance placed by Shri Vinod Diwakar, learned AAG on the burden not being discharged by the accused and no explanation given by them in their Section 313 Cr.P.C. statement is concerned, it is trite law that only after the prosecution discharges its burden of proving the case beyond reasonable doubt, the burden would shift on the accused. It is not necessary to reiterate this proposition of law. It will suffice to refer to the following observations of this Court in the case of Joydeb Patra and others v. State of West Bengal:
"10. We are afraid, we cannot accept this submission of Mr Ghosh. This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Evidence Act to establish that he was not guilty. In Sucha Singh v. State of Punjab [(2001) 4 SCC 375 : 2001 SCC (Cri) 717] this Court held: (SCC p. 381, para 19) "19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section Page 59 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn re- garding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference." Similarly, in Vikramjit Singh v. State of Punjab [(2006) 12 SCC 306 : (2007) 1 SCC (Cri) 732] this Court reiterated: (SCC p. 313, para 14) "14. Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same.
Of course, there are certain exceptions to the said rule e.g. where burden of proof may be imposed upon the accused by reason of a statute."" In that view of the matter, we do not find any merit in the said submissions.
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75. At this stage, we would like to remind ourselves as well as all the Courts in the country the golden principle to be followed in criminal jurisprudence. This Court, speaking through legendry H.R. Khanna, J., in the case of The State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh7 observed thus:
"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy on grounds which are fanciful or in the nature of conjectures." 7 (1974) 3 SCC 277 xxxxxxxxxxxxxxxxxxxxxx Page 60 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim
77. The finding is not only contrary to the well settled law interpreting Section 27 of the Evidence Act but also attempts to put a burden on the accused, which does not shift unless prosecution has proved the case beyond reasonable doubt.
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82. We may gainfully refer to the following observations of this Court in the case of Anand Ramachandra Chougule v. Sidarai Laxman Chougala and others8:
"10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.
11. The fact that a defence may not have been taken by an accused under Section 313 CrPC again cannot absolve the prose cution from proving its case beyond all rea sonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot be come the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand [Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427] , this Court observed : (SCC pp. 43334, para 28) "28. ... When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well set tled that the prosecution must stand or fall on its own feet. It cannot draw sup port from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.'
23. The TIP proceedings are Ex.PW5/E which were conducted on 02.11.2016. In the statement under Section 161 Cr. P. C. of Page 61 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim witness PW-5 Sanjeev recorded on 03.11.2016 it is recorded that on 02.11.2016 the said witness had identified the boy Salim aged 20-22 years to whom he had seen hitting the deceased with knife. Hence the accused was shown to the witness Sanjeev on the date of TIP proceedings. Above statement of PW-5 does not record that the accused was identified by witness in TIP proceedings. It is noted that the case of the prosecution is largely based on circumstantial evidence and the direct evidence relied upon by the prosecution remains unproved on record which is evidence of eye witness PW-5. The relevant law as to the circumstantial evidence was laid down in case titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3) at relevant para No.45 to 50 which are reproduced hereasunder:
"45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; &
b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).
46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow Page 62 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim certain tests which are broadly as follows:
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.
47. There cannot be any dispute to the fact that the case on hand is one of the circumstantial evidence as there was no eye witness of the occurrence. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard.
48. A three Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, held as under:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ Page 63 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague Page 64 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
49. In an Essay on the Principles of Circumstantial Evidence by William Wills by T. and J.W. Johnson and Co. 1872, it has been explained as under:
"In matters of direct testimony, if credence be given to the relators, the act of hearing and the act of belief, though really not so, seem to be contemporaneous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect of which is essentially inferential. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions.
The term PRESUMPTIVE is frequently used as synonymous with CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict accuracy, The word" presumption," ex vi termini, imports an inference from facts; and the adjunct "presumptive," as applied to Page 65 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim evidentiary facts, implies the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species.
The force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad absurdum."
50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.
24. In such view of the matter it is held that the prosecution has failed to prove the presence of the accused at the spot. Further the prosecution has failed to prove the recovery of knife from the accused. Recovery of Rs.250/- from the accused is not sufficiently proved that it belongs to the deceased. Since the presence of the accused was not proved on the spot therefore it cannot be said that the accused has committed dacoity. There is absence of circumstantial evidence in the nature of factum Page 66 of 67 SC No.117/2017 FIR No.655/2016 P. S. Sarai Rohilla State vs. Salim probandum/ principal fact on the basis of which factum probans / evidentiary fact could be inferred in the present case. The case of the prosecution has many infirmities and inconsistencies benefit of which must go to the accused.
25. In view of the discussion held above it is held that the prosecution has failed to prove the offence committed by accused Salim under Section 302/392/394/397/411/34 IPC and under Section 25 Arms Act, 1959. Hence the accused Salim is acquitted of the offence charged against him under Section 302/392/394/397/411/34 IPC and under Section 25 Arms Act, 1959. Accordingly, the accused Salim stands acquitted. Accused Salim who is in Judicial Custody in this case has also furnished his personal bond only in a sum of Rs.20,000/- under Section 437A Cr. P. C. as directed which will be in force for period of six months from the date of this judgment. He be released henceforth if not wanted in any other case. Jail Superintendent to comply immediately and accordingly.
File be consigned to the record room.
JOGINDER Digitally
JOGINDER
signed by
Announced in the open court PRAKASH PRAKASH NAHAR
on dated 25.11.24 NAHAR Date: 2024.11.25
16:11:30 +0530
(JOGINDER PRAKASH NAHAR)
Additional Sessions Judge (FTC-I)
Tis Hazari Court/Delhi/25.11.24
Page 67 of 67
SC No.117/2017
FIR No.655/2016
P. S. Sarai Rohilla
State vs. Salim