Himachal Pradesh High Court
Subhash Chand& Another vs State Of H.P on 8 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 47 of 2013 Date of Decision: 08th January, 2014 .
Subhash Chand& another ....Petitioners Versus State of H.P. ....Respondent of Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes rt For the Petitioners : Mr. Vijender Katoch, Advocate.
For the Respondent : Ms. Avni Kochhar, Deputy Advocate General.
Rakesh Kainthla,Judge (Oral).
The present revision is directed against the judgment dated 22.12.2012, passed by the learned Sessions Judge, Kangra at Dharamshala, H.P. vide which the judgment dated 27.09.2007 and order dated 28.09.2007 convicting the petitioners (accused before the learned Trial Court) for the commission of offence punishable under Section 379 read with Section 34 of IPC and sentencing them to undergo simple imprisonment for two years and pay a fine of ₹5,000/- and in case of default to further undergo simple ____________ Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 2 imprisonment for six months was upheld. (Parties shall hereinafter be referred to in the same manner as they were .
arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present revision are that the police filed a challan against the accused for the commission of offence punishable under Section 379 read of with Section 34 of IPC. It was asserted that JTO Lalit Thakur (PW-
1) made a complaint to the police (Ext.PW-1/A) stating that 20 rt pairs of cable measuring 400 meters worth ₹9200/- were stolen on the intervening night of 24.04.2006 and 25.04.2006 at Deol Phatahar, Telephone Exchange. The police registered the F.I.R.
(Ext.PW-7/A). SHO Sureshtha Thakur (PW-7) went to the spot and prepared the site plan (Ext.PW-7/C). She also recorded the statements of the witnesses as per their version. She received secret information that the accused, who were Junk Seller,had kept a bundle of copper wire inside their shop-cum-Store. She associated one Rajnish Awasthy (PW-2) and went to the spot for verification of information. The wives of the accused were called to the spot. The lock put on the shop was also broken and search of the shop/store was conducted. The police recovered one white ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 3 bag and the copper (Ext.P-1). It was weighed and its weight was found to be 21 kg 500 grams. The pieces of wire (Ext.P-2) .
weighing about 10 kg were also recovered from the spot. These were seized vide seizure memo (Ext. PW-1/B). A site plan of the place of recovery(Ext.PW-7/D) was prepared. Kamal Chand (PW-
8) conducted further investigation of the case. He interrogated of the accused. Accused Raman Kumar made a disclosure statement (Ext.PW-8/A), that he could get recovered one hacksaw blade and rt some of the copper extracted after burning the cable. This statement was signed by Gian Chand (PW-3) and Rakesh Kumar (PW-4). The accused took the police and witnesses to the bushes from where the copper wire (Ext.P-3) and one hacksaw blade (Ext.P-4) were recovered. The wire was weighed and its weight was found to be 700 grams. Wire and hacksaw blades were put in separate parcels. The parcel containing wire was sealed with seal "M" and the parcel containing the hacksaw blade was sealed with seal "K". Seal impressions (Ext.PW8/C and Ext.PW-8/D) were taken on separate pieces of cloth and the seal was handed over to Gian Chand (PW-3)after its use. The parcels were seized vide seizure memo (Ext.PW-8/B). The site plan (Ext.PW-8/E) of the place of recovery was prepared. Statements of the witnesses were ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 4 recorded as per their versions and after the completion of the investigation, the Challan was prepared and presented before the .
Court.
3. The learned Trial Court found sufficient reasons to frame charges against the accused for the commission of an offence punishable under Section 379 read with Section 34 of IPC.
of The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 8 witnesses to prove its rt case. Lalit Thakur (PW-1), is the informant. Rajnish Awasthy (PW-2) is the witness tothe recovery of copper from the shop of the accused. Gian Chand (PW-3) and Rakesh Kumar (PW-4) are the witnesses of the disclosure statements made by accused Raman Kumar and the consequent recovery. However, they have not supported the prosecution case. Udho Ram (PW-5) the lineman, who detected the theft. Madan Lal (PW-6) is the owner of the shop which was rented by him to the accused. He did not support the prosecution case. Sureshtha Thakur (PW-7) and Kamal Chand (PW-8) conducted the investigation of the case.
5 The accused in their statements recorded under Section 313 ofCr.P.C. denied the prosecution case in its entirety.
::: Downloaded on - 12/01/2024 20:32:23 :::CIS 5They claimed that a false case was registered against them and they were innocent. However, they did not lead any evidence in .
defence.
6 The learned Trial Court held that the statements of Lalit Thakur, Rajnish Awasthy and Sureshtha Thakur proved the recovery of copper wire from the shop of the accused. There was of nothing in their cross-examination to show that they were making false statements. The recovery was effected in the rt presence of the wives of the accused. The Police Officer cannot be compelled to disclose the name of the informant, therefore, the failure to mention the name of the person, who had disclosed the information is not material. The failure to obtain a search warrant was justified because of reasonable apprehension that articles would be destroyed. The search was conducted in the presence of the witnesses. The failure to take the locks in possession was held to be immaterial. The statement made by accused Raman Kumar could not be discarded simply because the independent witnesses had not supported the prosecution case. Hence, the accused were convicted and sentenced as aforesaid.
::: Downloaded on - 12/01/2024 20:32:23 :::CIS 67. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was .
decided by the learned Sessions Judge, Kangra at Dharamshala, H.P. The learned Appellate Court held that the failure to obtain the search warrant was not material as the Investigating Officer had an apprehension of the removal of the case property. She had of associated independent witnesses, who had supported the prosecution case. The recovery pursuant to the disclosure rt statement was also believed. The witnesses admitted their signatures on the recovery memo. They were neighbours of the accused and the fact that they had not supported the prosecution case and had resiled from their earlier statements was understandable for obvious reasons. Hence, the appeal was dismissed.
8. Feeling aggrieved and dissatisfied with the judgment passed by the learned Courts below, the present revision has been filed. It has been asserted that the learned Courts below had failed to appreciate the entire set of facts and circumstances. The prosecution failed to prove its case beyond reasonable doubt.
There was no iota of evidence to link the petitioners/accused with ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 7 the offences and the involvement was assumed based on the imaginary assumptions unknown to the criminal law. The strict .
principles of criminal law were not applied to the present case.
There were material contradictions and inconsistencies in the prosecution case. The learned Courts below ignored those material contradictions. The defence version was wrongly of disbelieved. The recovery was made behind the back of the accused. The lock was not taken into possession and a possibility rt of false implication could not be ruled out. The possession of the shop was not proved. The search warrant was not obtained. The prosecution had failed to prove a well-founded apprehension that the property would be destroyed/removed to justify the non-
compliance with the mandatory provisions of the law. The statement under Section 27 of the Indian Evidence Act was not proved as per law because two independent witnesses did not support the prosecution case and benefit of the same should have been granted to the accused. Therefore, it was prayed that the present revision be allowed and the judgment and order passed by the learned Courts below be set aside.
::: Downloaded on - 12/01/2024 20:32:23 :::CIS 89. I have heard Mr. Vijender Katoch, learned counsel for the petitioners and Ms. Avni Kochhar, learned Deputy Advocate .
General for respondent-State.
10. Mr. Vijender Katoch, learned counsel for the petitioners submitted that there are various contradictions in the testimonies of the witnesses. The informant had disclosed before of the Court that the theft was reported to him by Udho Ram (PW-5), which was missing from the complaint made by him to the police.
rt The police failed to recover the locks, which would lead to an inference that there was no lock and the possibility of anybody putting anything inside the shop cannot be ruled out. In any case, the possession of the shop was not proved since the owner did not support the prosecution case regarding renting the shop to the accused. The disclosure statement and consequent recovery were not proved as the independent witnesses did not support the prosecution case. Therefore, he prayed that the present petition be allowed and the judgments and order passed by the learned Courts below be set aside.
11. Ms. Avni Kochhar, learned Deputy Advocate General for the respondent/State submitted that the contradictions are ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 9 minor and were bound to come with time. They cannot be used for discarding the prosecution case. The mere fact that the .
witnesses have not supported the prosecution case cannot lead to an inference that the prosecution case is false; therefore, she prayed that the present revision be dismissed.
12 I have given considerable thought to the submissions of at the bar and have gone through the records carefully.
13. The present revision has been filed against the rt concurrent findings of the fact recorded by the Learned Trial Court and the learned Appellate Court. It was laid down by the Hon'ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204 : (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not appellate Court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207
10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction for the ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 10 purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the .
provision is to set right a patent defect or an error of jurisdiction or law. There has to be well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.
11. This Court in Manju Ram Kalita v. State of Assam [Manju of Ram Kalita v. State of Assam, (2009) 13 SCC 330 : (2010) 1 SCC (Cri) 1015], while dealing with the scope of reappreciation of evidence by higher Court in criminal revision, observed in paras 9, 10 and 11 of the judgment as under : (SCC pp. 333- rt
34) "9. So far as Issue 1 is concerned i.e. as to whether the appellant got married to Smt Ranju Sarma, is a pure question of fact. All three courts below have given concurrent findings regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon the fruitless task of determining the issues by reappreciating the evidence.
10. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from normal practice.
::: Downloaded on - 12/01/2024 20:32:23 :::CIS 11'9. ... The position may undoubtedly be different if the inference is one of law from [the] facts admitted and proved or where the finding of fact is materially .
affected by a violation of any rule of law or procedure.' (Vide Sriniwas Ram Kumar v. Mahabir Prasad [Sriniwas Ram Kumar v. Mahabir Prasad, 1951 SCC 136] , SCC p. 139, para 9) ***
11. Thus, it is evident from the above that of this Court being the fourth court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in rt good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth court, should not interfere even though we may exercise discretion differently had the case come before us initially. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of punishment on this count is required to be interfered with."
14. The present revision has to be decided as per the judgment of the Hon'ble Supreme Court.
15. It was submitted that witness Lalit Thakur did not mention the fact that he was told about the theft by his lineman in his complaint to the police. He admitted in his cross-examination ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 12 that he had not mentioned in his complaint (Ext.PW-1/A) that (Udho Ram (PW-5) had told him about the theft. This admission .
shows that the witness is not a reliable witness. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in Motiram Padu Joshi and Others Versus State of Maharashtra 2018 (9) SCC 429 that FIR is not an encyclopedia which would of contain all the details of the incident. It was observed:-
"14. Furthermore, as pointed out by the High Court, FIR is not an encyclopedia which should contain all the details of rt the incident. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case about the occurrence appear. Omission as to the names of the assailants or the witnesses may not all the times be fatal to the prosecution if the FIR is lodged without delay. Unless there are indications of fabrication, the court cannot reject the prosecution case as given in the FIR merely because of omission. In the present case, FIR was registered without delay and prompt registration of FIR itself lends assurance to the prosecution case. The object of the FIR is to set the law in motion. The omission to give the names of assailants or the names of witnesses in the FIR is not fatal to the prosecution case. The High Court was right in observing that non-mention of the names of eyewitnesses in the FIR can hardly be fatal to the prosecution case."
16. The complaint was made to inform the police about the theft of the cable and there was no necessity for the informant to mention the name of the person who had given information to him.
::: Downloaded on - 12/01/2024 20:32:23 :::CIS 1317. Secondly, it was laid down by the Hon'ble Supreme Court in Tahsildar Singh v. State of U.P., 1959 Supp (2) SCR 875:AIR .
1959 SC 1012: 1959 Cri LJ 1231 that omission can amount to a contradiction in the facts and circumstances of the case when the same is implied. The method of putting the omission as a contradiction was also explained by the Hon'ble Supreme Court in of the said judgment. It was observed:
49. This question loses much of its importance when there are patent contradictions and they can be put to the witness rt without any cross-examination as in the two statements:
(a) I saw A hit B.
(b) I did not see A hit B. But there are complex situations where the contradiction is most vital and relevant but is not so patent. There are cases of omissions on a relevant and material point. Let us illustrate our meaning by giving two imaginary statements:
(a) When I arrived at the scene I saw that X was running away, chased by A and B who caught him.
(b) When I arrived at the scene I saw X take out a dagger from his pocket, stab D in his chest and then take to his heels. He was chased by A and B who caught him.
There is an omission of two facts in the first statement viz.
(a) X took out a dagger from his pocket, and (b) he stabbed D in the chest. These two statements or their omission involve a contradiction as to the stage of the occurrence when the observation of the witness began.
50. What Section 145 of the Indian Evidence Act provides is that a witness may be contradicted by a statement reduced ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 14 into writing and that is also the use to which the earlier statement can be put under Section 162 of the Code of Criminal Procedure. When some omissions occur, there is a contradiction in one sense but not necessarily on a relevant .
matter. The statements of witnesses may and do comprise numerous facts and circumstances, and it happens that when they are asked to narrate their version over again, they omit some and add others. What use can be made of such omissions or additions is for the accused to decide, but it cannot be doubted that some of the omissions or additions may have a vital bearing upon the truth of the of story given. We do not think that by enacting Section 162 in the words used, the legislature intended a prohibition of cross-examination to establish which of the two versions is an authentic one of the events as seen by the witness. The rt use of the words "re-examination" and "cross- examination" in the same proviso shows that cross- examination is contemplated or in other words, that the manner of contradiction under Section 145 of the Indian Evidence Act comprises both cross-examination and contradiction. Indeed, the second part is only the final stage of the contradiction, which includes the earlier stages. Re-examination is only permissible where there is cross-examination.
51. It must not be overlooked that the cross-examination must be directed to bringing out a contradiction between the statements and must not subserve any other purpose. If the cross-examination does anything else, it will be barred under Section 162 which permits the use of the earlier statement for contradicting a witness and nothing else. Taking the example given above, we do not see why cross- examination may not be like this:
Q. I put it to you that when you arrived on the scene X was already running away and you did not actually see him stab D as you have deposed today?
A. No. I saw both events.::: Downloaded on - 12/01/2024 20:32:23 :::CIS 15
Q. If that is so, why is your statement to the police silent as to stabbing?
A. 1 stated both the facts to the police.
.
The witness can then be contradicted with his previous statement. We need hardly point out that in the illustration given by us, the evidence of the witness in court is direct evidence as opposed to testimony to a fact suggesting guilt.
The statement before the police can only be called circumstantial evidence of complicity and not direct evidence in the strict sense. Of course, if the questions framed were:
of Q. What did you state to the police? or Q. Did you state to the police that D stabbed X? rt they may be ruled out as infringing Section 162 of the Code of Criminal Procedure because they do not set up a contradiction but attempt to get a fresh version from the witnesses with a view to contradicting him. How the cross- examination can be made must obviously vary from case to case, counsel to counsel and statement to statement. No single rule can be laid down and the propriety of the question in the light of the two sections can be found only when the facts and questions are before the court. But we are of the opinion that relevant and material omissions amount to vital contradictions, which can be established by cross-examination and confronting the witness with his previous statement.
52. The word "contradict" has various meanings, and in the Oxford English Dictionary it is stated as "To be contrary to in effect, character etc. to be directly opposed to; to go counter to, go against" as also "to affirm the contrary of; to declare untrue or erroneous; to deny categorically" and the word "contradiction" to mean "A state or condition of opposition in things compared; variance; inconsistency, contrariety". In Shorter Oxford English Dictionary, "contradict" is said to mean "To speak against; to oppose in speech; to forbid; to oppose; to affirm the contrary of; to ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 16 declare untrue or erroneous; to deny; to be contrary to; to go counter to and go against" and "contradiction" to mean "A state of opposition in things compared; variance; inconsistency". The meaning given to the words .
"contradict" and "contradiction" in these dictionaries must at least include the case of an omission in a previous statement which by implication amounts to contradiction and therefore such an omission is a matter which is covered by the first proviso to Section 162 and questions in cross- examination can be put with respect to it to contradict the witness. It is difficult to say as an inflexible rule that any of other kind of omission cannot be put to a witness in order to contradict him when the proper foundation had been laid for putting such questions. The words "to contradict him"
appearing in Section 145 of the Evidence Act must carry the rt same meaning as the words "to contradict such witness" in Section 162 of the Code. In a civil suit, where the provisions of Section 162 of the Code of Criminal Procedure have no application, would it be correct to say that only questions concerning omissions of the kind suggested by our learned Brother could be put and none other? We cannot see why a question of the nature of cross-examination regarding an omission with respect to a matter which the witness omitted to make in his previous statement and which, if made, would have been recorded, cannot be put. The facts and circumstances of each case will determine whether any other kind of omission than that referred to by our learned Brother could be put to a witness in order to contradict him.
It would be for the Judge to decide in each case whether, in the circumstances before him, the question could be put. The purpose of cross-examination is to test the veracity of the statement made by a witness in his examination-in- chief as also to impeach his credit. Not only is it the right of the accused to shake the credit of a witness, but it is also the duty of the court trying an accused to satisfy itself that the witnesses are reliable. It would be dangerous to lay down any hard and fast rule.
::: Downloaded on - 12/01/2024 20:32:23 :::CIS 1718. In the present case, such a procedure has not been followed. Merely asking the witnesses that this fact was not .
mentioned in his statement is not sufficient to put the contradiction and omission cannot be legally used by the defence.
19. It was submitted that there is overwriting/alternation in the complaint (Ex.PW-1/A). It is true that there is an of overwriting in quantity as well as amount but both these overwritings are initialled. The pair of cables have remained rt unchanged. The mere overwriting in quantity, as well as amount, will not make the prosecution case suspect.
20. Sureshtha Thakur (PW-7) stated that She received a secret information that the accused had kept a bundle of copper wire inside the shop-cum-store on which she associated independent witnesses and went to the shop. She called the wives of the accused. The lock of the shop was broken.
21. It was submitted that there is infirmity in the procedure adopted by the Investigating Officer as the search warrant was not obtained, which was mandatory; hence, no reliance can be placed upon the articles recovered. In substance, the argument is based on the theory of the fruits of a poisoned ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 18 tree. This theory does not apply to India. It was laid down by the Hon'ble Supreme Court in Pooran Mal v. Director of Inspection .
(Investigation), (1974) 1 SCC 345: 1974 SCC (Tax) 114, that any evidence illegally obtained cannot be excluded from the consideration. It was observed:
"22. Dr Singhvi who appeared on behalf of the appellants in of the two appeals frankly conceded that there was no specific Article of the Constitution prohibiting the admission of evidence obtained in an illegal search and seizure. But he submitted that to admit such evidence is against the spirit rt of the Constitution which has made our liberties inviolable. In this connection, he referred to some American cases which seem to recognize the validity of his submission.
23. As to the argument based on "the spirit of our Constitution", we can do no better than quote from the judgment of Kania, C.J., in A.K. Gopalan v. State of Madras [1950 SCC 228: AIR 1950 SC 27: 1950 SCR 88 at 120:
1950 SCJ 174].
"There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority."::: Downloaded on - 12/01/2024 20:32:23 :::CIS 19
Now, if the Evidence Act, 1872 which is a law consolidating, defining and amending the law of evidence, no provision of which is challenged as violating the Constitution -- permits relevancy as the .
only test of admissibility of evidence (See Section 5 of the Act) and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground, that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution. In M.P. Sharma v. Satish rt Chander already referred to, a search and seizure made under the Criminal Procedure Code was challenged as illegal on the ground of violation of the fundamental right under Article 20(3), the argument being that the evidence was no better than illegally compelled evidence. In support of that contention, reference was made to the Fourth and Fifth Amendments of the American Constitution and also to some American cases which seemed to hold that the obtaining of incriminating evidence by illegal seizure and search was tantamount to the violation of the Fifth Amendment. The Fourth Amendment does not place any embargo on reasonable searches and seizures. It provides that the right of the people to be secure in their persons, papers and effects against unreasonable searches and seizures shall not be violated. Thus the privacy of a citizen's home was specifically safeguarded under the Constitution, although reasonable searches and seizures were not taboo. Repelling the submission, this Court observed at p. 1096:
"A power of search and seizure is in any system of jurisprudence an overriding power of the ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 20 State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional .
limitations by recognition of a fundamental right to privacy, analogous to theAmerican Fourth Amendment, we have no justification to import it, into a different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) of would be defeated by the statutory provisions for searches."
It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained rt construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search.
24. So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. In Barindra Kumar Ghose v. Emperor [ILR 37 Cal 467: 7 1C 359] the learned Chief Justice Sir Lawrence Jenkins says at p. 500:
"Mr Das has attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On this assumption, he has contended that the evidence discovered by the searches is not admissible, but to this view, I cannot accede. For, without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 21 course of a search in which those provisions were disregarded. As Jimutavahana with his shrewd common sense observes -- "a fact cannot be altered by 100 texts," and as his commentator quaintly .
remarks: "If a Brahmana be slain, the precept 'slay not a Brahmana' does not annul the murder". But the absence of the precautions designed by the Legislature lends support to the argument that the alleged discovery should be carefully scrutinized."
In Emperor v. Allahdad Khan [ILR 35 All 358: 19 1C 332] the Superintendent of Police and a Sub-Inspector of searched the house of a person suspected of being in illicit possession of excisable articles and such articles were found in the house searched. It was held that the conviction of the owner of the house under rt Section 63 of the United Provinces Excise Act, 1910, was not rendered invalid by the fact that no warrant had been issued for the search, although it was presumably the intention of the Legislature that in a case under Section 63, where it was necessary to search a house, a search warrant should be obtained beforehand. In Kuruma v. Queen [1955 AC 197] where the Privy Council had to consider the English Law of Evidence in its application to Eastern Africa, Their Lordships propounded the rule thus:
"The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained."
Some American cases were also cited before the Privy Council. Their Lordships observed at p. 204 thus:
"Certain decisions of the Supreme Court of the United States of America were also cited in the argument. Their Lordships do not think it necessary to examine them in detail. Suffice it ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 22 to say that there appears to be considerable difference of opinion among the judges both in the State and Federal Courts as to whether, or not the rejection of evidence obtained by illegal .
means depends on certain articles in the American Constitution. At any rate, in Olmstead v. United States(1828) 277 U.S. 438, the majority of the Supreme Court was clearly of the opinion that the common law did not reject relevant evidence on that ground."
In the Kuruma case, Kuruma was searched by two of police officers who were not authorised under the law to carry out a search and, in the search, some ammunition was found in the unlawful possession of Kuruma. The question was whether the evidence with rt regard to the finding of the ammunition on the person of Kuruma could be shut out on the ground that the evidence had been obtained by an unlawful search. It was held it could not be so shut out because the finding of ammunition was a relevant piece of evidence on a charge for unlawful possession. In a later case before the Privy Council in Herman King v. Queen [(1969) 1 AC 304] which came on appeal from a Court of Appeal of Jamaica, the law as laid down in the Kuruma case was applied although the Jamaican Constitution guaranteed the constitutional right against search and seizure in the following provision of the Jamaica (Constitution) Order in Council 1962, Sch. 2, Section 19:
"(1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Section to the extent that the law in question makes provision which is reasonably required ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 23 ....for the purpose of preventing or detecting crime...."
In other words search and seizure for the purposes of preventing or detecting crime reasonably enforced .
was not inconsistent with the constitutional guarantee against search and seizure. It was held in that case that the search of the appellant by a Police Officer was not justified by the warrant nor was it open to the Officer to search the person of the appellant without taking him before a Justice of the Peace. Nevertheless, it was held that the Court had a of discretion to admit the evidence obtained as a result of the illegal search and the constitutional protection against search of person or property without consent did not take away the discretion of the Court. rt Following Kuruma v. Queen, the Court held that it was open to the Court not to admit the evidence against the accused if the Court was of the view that the evidence had been obtained by conduct of which the prosecution ought not to take advantage. But that was not a rule of evidence but a rule of prudence and fair play. It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.
25. In that view, even assuming, as was done by the High Court, that the search and seizure were in contravention of the provisions of Section 132 of the Income Tax Act, still the material seized was liable to be used subject to law before the Income-tax authorities against the person from whose custody it was seized and, therefore, no Writ of Prohibition in restraint of such use could be granted. It must be, therefore, held that the High Court was right in dismissing the two writ petitions. The appeals must also fail and are dismissed with costs."
::: Downloaded on - 12/01/2024 20:32:23 :::CIS 2422. This position was reiterated in State v. N.M.T. Joy Immaculate, (2004) 5 SCC 729: 2004 SCC (Cri) 1722: 2004 SCC .
OnLine SC 635, wherein it was observed:
14. The High Court after holding that the order granting police custody is ex facie illegal has further held that the so-called confession and alleged recovery have no evidentiary value. It has also been held that the investigation conducted by P-1 and P-4 police with of reference to the accused is not bona fide and false records have been created to implicate the accused. The question then arises whether the High Court was right in making the aforesaid observations, even if it is assumed that the order rt dated 6-11-2001 granting police custody was illegal (though we have held above that the aforesaid order being a purely interlocutory order, no revision lay against the same and the High Court committed a manifest error of law in entertaining the revision and setting aside the said order).
The admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. The Evidence Act or the Code of Criminal Procedure or for that matter any other law in India does not exclude relevant evidence on the ground that it was obtained under an illegal search and seizure. A challenge to a search and seizure made under the Criminal Procedure Code on the ground of violation of fundamental rights under Article 20(3) of the Constitution was examined in M.P. Sharma v. Satish Chandra [AIR 1954 SC 300: 1954 Cri LJ 865] by a Bench of eight Judges of this Court. The challenge was repelled and it was held as under: (AIR pp. 306-07, para 18) "A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution- makers have thought fit not to subject such regulation to constitutional limitations by ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 25 recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of .
strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches."
15. The law of evidence in our country is modelled on the rules of evidence which prevail in English law. In Kuruma v. R. [1955 AC 197 : (1955) 1 All ER 236 : (1955) 2 of WLR 223 (PC)] an accused was found in unlawful possession of some ammunition in a search conducted by two police officers who were not authorised under the law to carry out the search. The question was whether the evidence with rt regard to the unlawful possession of ammunition could be excluded on the ground that the evidence had been obtained on an unlawful search. The Privy Council stated the principle as under: (All ER p. 239 B) The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained.
15.1. This question has been examined threadbare by a Constitution Bench in Pooran Mal v. Director of Inspection (Investigation) [(1974) 1 SCC 345: 1974 SCC (Tax) 114] and the principle enunciated therein is as under: (SCC pp. 363-64 & 366, paras 23 & 24) If the Evidence Act, 1872 permits relevancy as the only test of admissibility of evidence, and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of the Constitution, ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 26 because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution. So, neither by invoking the spirit of our .
Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search. So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English law, and courts in India and in England have consistently refused to exclude relevant evidence of merely on the ground that it is obtained by illegal search or seizure. Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution rt or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.
15.2. This being the law, Direction (b) given by the High Court that the confession and alleged recovery has no evidentiary value is clearly illegal and has to be set aside. The effect of the confession and also the recovery of the incriminating article at the pointing out of the accused has to be examined strictly in accordance with the provisions of the Evidence Act.
23. Therefore, even if the search of the shop was conducted in violation of the law, any evidence so obtained cannot be excluded from the evidence and will remain admissible. Hence, the submission that the recovered article cannot be used by the prosecution is not acceptable.
24. Even otherwise, both the Courts below have concurrently held on facts that the search could not have been ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 27 conducted after obtaining the search warrant because it would have led to the destruction of the case property. There is no .
infirmity in this finding and the submission that Sureshtha Thakur erred in searching the shop/store without search warrants is not acceptable.
25. It was submitted that failure to obtain the lock is fatal of to the case of the prosecution because it can only lead to an inference that there was no lock on the shop and the articles were rt planted by someone; however, this submission is not acceptable.
A failure to obtain the relevant piece of evidence is a case of defective investigation, which is not fatal to the prosecution. It was held in Karnel Singh vs. State 1995 (5) SCC 518 that the prosecution case cannot be doubted due to the defective investigation because Investigating Officer is not under the control of the complainant and the complainant cannot be penalized for the negligence of the Investigating Officer. It was held:
"4. We have very carefully scrutinized the evidence having regard to the fact that (PW 6) the Investigation Officer had not taken the care expected of him. He did not record the statements of the two witnesses nor did he refer to the attachment of the 'Chaddi' in his oral evidence. That was a very vital piece of evidence to which little or no attention ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 28 was paid. If the seizure of that article was properly proved, the article with semen stains would have lent strong corroboration to the evidence of the prosecutrix. There is no doubt that the investigation was casual and defective.
.
But despite these deficiencies both the Courts below have recorded a conviction. The question is: are they right?
5. Notwithstanding our unhappiness regarding the nature of the investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation, the Court has to be circumspect in evaluating the evidence but it would not be of right to acquitting an accused person solely on account of the defect; to do so would be tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. Any Investigating Officer, in fairness rt to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure memo in regard to the 'Chaddi'. That is the reason why we have said that the investigation was slipshod and defective.
6. We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny, we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury."
26. This position was reiterated in Sachin Kumar Singhraha v. State of M.P. (2019) 8 SCC 371 = 2019 SCC OnLine SC 363, and it was held:
"At this juncture, we would like to recall that it is well- settled that criminal justice should not become a casualty because of the minor mistakes committed by the Investigating Officer. We may hasten to add here itself that ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 29 if the Investigation Officer suppresses the real incident by creating certain records to make a new case altogether, the Court would definitely strongly come against such action of the Investigation Officer. There cannot be any dispute that .
the benefit of doubt arising out of major flaws in the investigation would create suspicion in the mind of the Court and consequently, such inefficient investigation would accrue to the benefit of the accused. As observed by this Court in the case of State of H.P. v. Lekh Raj, (2000) (1) SCC 247, a criminal trial cannot be equated with a mock scene from a stunt film. Such trial is conducted to ascertain of the guilt or innocence of the accused arraigned and in arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the rt witnesses. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial."
27. Thus, the prosecution case cannot be doubted due to the defective investigation. The case has to be seen independently of the defective investigation.
28. Rajnish Awasthy (PW-2) is the witness to the search of the shop and consequent recovery. He stated that SHO Police Station Baijnath conducted the search of the shop/godown of the accused and recovered the copper wire and pieces of cable. These were seized vide seizure memo (Ext. PW-1/B). His signatures and signatures of Up Pardhan were also obtained. He identified copper ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 30 wire (Ex.P-1) and pieces of the cable (Ex.P-2). He stated in his cross-examination that no search warrant was shown to him or .
the owner of the shop. The Police had broken two locks in his presence. He specifically denied that the lock was not put on the shutter of the shop from where recovery of Ext.P-1 and P-2 was effected. He admitted that the accused were not present at the of time of the search. He did not know the name of the owner of the shop but volunteered to say that the shop was taken on rent by the rt accused. No Rent Deed was taken into possession in his presence.
He denied that his signatures were obtained at the Police Station.
3-4 people also signed in his presence. He knew the Up Pradhan but did not remember about the others. He denied that no recovery was effected in his presence. He denied that no weighing scale was found on the spot.
29. The cross-examination of this witness does not show that he has any interest in deposing against the accused. He categorically stated not only in his examination-in-chief but in his cross-examination as well that godown belongs to the accused. Significantly, it was not suggested to be incorrect by the defence, which means that this part of his testimony was accepted ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 31 as correct.It was laid down by the Hon'ble Supreme Court in State of Uttar Pradesh Versus Nahar Singh 1998 (3) SCC 561 that where the .
testimony of a witness is not challenged in the cross-
examination, the same cannot be challenged during the arguments. This position was reiterated in Arvind Singh Versus State of Maharashtra AIR 2020 (SC) 2451 and it was held:
of [57] The House of Lords in a judgment reported as Browne v. Dunn 1894 6 Reports 67 (HL) considered the principles of appreciation of evidence. Lord Chancellor Herschell, held that it is absolutely essential to the proper conduct of a rt cause, where it is intended to suggest that a witness if not speaking the truth on a particular point, direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged. It was held as under:
"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 32 opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case but is essential to fair play and fair dealing with witnesses.
.
Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue, but it seems to me that cross- examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards, to suggest that he is not a witness of truth, I mean upon a of point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling."
rt [58] Lord Halsbury, in a separate but concurring opinion, held as under:
"My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind, nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."
[59] This Court in a judgment reported as State of U.P. v. Nahar Singh, 1998 3 SCC 561, quoted from Browne to hold that in the absence of cross-examination on the explanation of the delay, the evidence of PW-1 remained unchallenged and ought to have been believed by the High Court. Section 146 of the Evidence Act confers a valuable ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 33 right of cross-examining the witness tendered in evidence by the opposite party. This Court held as under:-
"13. It may be noted here that part of the statement of PW 1 was not cross-examined by the accused. In the .
absence of cross-examination on the explanation of the delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by of allowing a witness to be questioned:
(1) to test his veracity, rt(2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."
[60] This Court in a judgment reported as Muddasani Venkata Narsaiah (Dead) through LRs. v. Muddasani Sarojana, 2016 (12) SCC 288 laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely a technical one. It was held as under:
"15. Moreover, there was no effective cross- examination made on the plaintiff's witnesses with respect to the factum of execution of the sale deed, PW 1 and PW 2 have not been cross-examined as to the factum of execution of the sale deed. The cross- examination is a matter of substance not of procedure one is required to put one's version in the cross-examination of the opponent. The effect ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 34 of non-cross-examination is that the statement of the witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v.
.
Debnath Bhagat [Bhoju Mandal v. Debnath Bhagat, 1963 AIR(SC) 1906]. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. A party is required to put his version to the witness. If no such questions are put the Court would presume that the witness account has of been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. 1958 AIR(P&H) 440.
16. In Maroti Bansi Teli v. Radhabai [Maroti Bansi Teli v. Radhabai, 1945 AIR(Nag) 60, it has been laid rt down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian 1961 AIR(Cal) 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely a technical one. A Division Bench of the Nagpur High Court in Kuwarlal Amritlal v. Rekhlal Koduram 1950 AIR(Nag) 83 has laid down that when attestation is not specifically challenged and the witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. A Division Bench of the Patna High Court in Karnidan Sarda v. Sailaja Kanta Mitra 1940 AIR(Pat) 683 has laid down that it cannot be too strongly emphasised that the system of ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 35 administration of justice allows of cross- examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested .
in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first appellate court as to the factum of execution of the sale deed in favour of the plaintiff."
30. Therefore, it is not permissible to say that his of testimony regarding the possession should have been rejected and his testimony clearly proves that copper wire and pieces of copper rt were recovered from the shop of the accused.
31. Section 114 of the Indian Evidence Actentitles the Court to presume the existence of any fact which it thinks is likely to have happened, regard being had to the common course of natural events, human conduct. Illustration (a) provides that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession. It was laid down in Wasim Khan v. State of U.P., 1956 SCR 191: AIR 1956 SC 400: 1956 Cri LJ 790 that recent possession of stolen articles can lead to an inference that the person has not only committed the theft but the aggravated offence as well. It was observed:
::: Downloaded on - 12/01/2024 20:32:23 :::CIS 367. The real question is whether the evidence in the case establishes that the appellant murdered and robbed Ram Dularey. The evidence is circumstantial. Before we deal with that evidence, it is necessary to consider how far .
recent possession of the property of a deceased, in circumstances clearly indicating that he had been murdered and robbed, would suggest that not only the possessor of the property was a thief or a receiver of stolen property, but that it also indicated that he was guilty of a more aggravated crime which had a connection with the theft. In the case of Emperor v. Sheikh Neamatulla [(1913) 17 of CWN 1077] Sir Lawrence Jenkins had the occasion to examine this question. After referring to Section 114 of the Evidence Act, he quoted the following passage from Wills on Circumstantial Evidence:
rt "the possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny, or of receiving with guilty knowledge, but of any other more aggravated crime which has been connected with theft. This particular fact of presumption commonly forms also a material element of evidence in cases of murder; which special application of it has often been emphatically recognized". In the case of Queen-Empress v. Sami [(1890) ILR 13 Mad 426] at p. 432, the learned Judges of the High Court observed, "Under these circumstances, and in the absence of any explanation, the presumption arises that anyone who took part in the robbery also took part in the murder. In cases in which murder and robbery have been shown to form parts of one transaction, it has been held that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder. All the facts which tell against the appellant, especially his conduct indicating a consciousness of guilt, point equally to the conclusion that he was guilty as well of the murder as of the robbery..................". In the case of Emperor v. Chintamoni Shahu [AIR 1930 Cal 379], the ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 37 opinion was expressed that "the possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny or of receiving with guilty knowledge but of any other more aggravated crime which .
has been connected with the theft; this particular fact of presumption forms also a material element of evidence in the case of murder". A similar view seems to have been taken in the case of In re Guli Venkataswamy [AIR 1950 Mad 309] as well as in the case of Ramprashad Makundram Rajput v. The Crown [AIR 1949 Nag 277].
32. In the present case, the theft took place on the of intervening night of 24.04.2006 and recovery was effected on 26.04.2006 soon after the theft and the presumption could have rt been validly applied to the present case to infer that the accused had either committed the thef tor had received the stolen articles.
33. The prosecution examined Madan Lal (PW-6) to prove that he had rented the shop to the accused, however, he did not support the prosecution case. He stated that he does not own any shop and the accused is not his tenant. He was permitted to be cross-examined. He admitted that he knew the accused and that the accused was running a shop of junk near the sawmill. He denied that the shop was taken on rent by the accused. He was contradicted with his previous statement mark 'M' portion A to A and he denied the same. This part of his previous statement was proved specifically and a general statement was made by ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 38 Sureshtha Thakur (PW-7) that she had recorded the statements of the witnesses as per their version. However, keeping in view the .
fact that the statement of Rajnish Awasthy has not been specifically challenged regarding the possession of the shop, this aspect will not make much difference to the prosecution case.
Therefore, the testimony of this witness will not make the of prosecution case doubtful.
34. The prosecution has also relied upon the disclosure rt statement made by accused Raman Kumar (Ext.PW8/A) and consequent recoveries witnessed by Gain Chand (PW-3) and Rakesh Kumar (PW-4).
35. Gian Chand (PW-3) stated that nothing had happened in his presence. He was permitted to be cross-examined. He denied the previous statement recorded by the police. He identified his signatures on the memo. He admitted that he had furnished the bail bonds of the accused. He denied that the accused had made a disclosure statement and got recovered a hacksaw blade and wire.
36. Rakesh Kumar (PW-4) did not support the prosecution case. He stated that he drives the vehicle and he has no knowledge ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 39 about the case. He was permitted to be cross-examined. He stated in his cross-examination that his statement was not recorded by .
the police. He denied the previous statement mark 'R' recorded by the police. He admitted his signatures on the memo. He admitted that his house is adjacent to the house of the accused and knew them for 2-3 years. He denied that he was making a false of statement at the instance of the accused.
37. Kamal Chand (PW-8) stated that he had recorded the rt statement of Raman Kumarunder Section 27 of the Indian Evidence Act (Ext.PW-8/A) in the presence of Gain Chand (PW-3) and Rakesh Kumar (PW-4). Accused Raman Kumar got recovered the burnt copper and hacksaw blade with the frame with which the cable was cut. He stated in his cross-examination that he could not say that the hacksaw blade was rubbed with the stone.
He admitted that blades and wire are commonly available. He denied that he had recorded the statement of witnesses as per their version. Badev Singh etc. were not associated because they were not available. He denied that the whole of the investigation was conducted in the police station.
::: Downloaded on - 12/01/2024 20:32:23 :::CIS 4038. It was submitted that since two independent witnesses have not supported the prosecution case regarding the making of .
the disclosure statement and consequent recovery; therefore, the same is to be discarded. The learned Courts below erred in relying upon the same. This submission is not acceptable Both the learned Courts below concurrently pointed out that both of independent witnesses knew the accused. Both of them signed the memo and they were not supporting the case for obvious reasons.
rt
39. The witnesses admitted their signatures on the memos. They have not given any valid explanation for putting their signatures on the memo. It was laid down by this Court in Budh Ram Versus State of Himachal Pradesh 2020 Crim. L.J. 4254 that the fact that the independent witness has turned hostile is not sufficient to doubt the prosecution case. When the witness did not say that he was threatened by the police and had admitted his signatures on the memos, his testimony is not sufficient to doubt the prosecution's case. It was observed:
"Though the independent witnesses, PW-1 Rajiv Kumar and PW-2 Hira Lal, were declared hostile and were cross- examined, however, the law in respect of appreciating the testimonies of such witnesses is well settled. Hon'ble Apex ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 41 Court in titled Sudru versus State of Chhattisgarh, (2019) 8 SCC 333 relying upon Bhajju versus State of M.P.,2010 4 SCC 327, has again reiterated the well-settled principle that evidence of hostile witness can be relied upon by the .
prosecution version. Merely because a witness has turned hostile, the same does not render his evidence or testimony as inadmissible in trial and as such conviction can be based upon such testimony, if it is corroborated by other reliable evidence.
In a case titled Raja and Others versus State of Karnataka, (2016) 10 SCC 506 the Apex Court observed that the evidence of of a hostile witness cannot be altogether discarded and as such it is open for the Court to rely on the dependable part of such evidence which stands duly corroborated by other reliable evidence on record.
rt In a case titled Selvaraj @ Chinnapaiyan versus State represented by Inspector of Police, (2015) 2 SCC 662 the Apex Court has observed that in a situation/case, wherein, the witness deposes false in his/her cross-examination, that itself is not sufficient to outrightly discard his/her testimony in examination-in-chief. The Court held that a conviction can be recorded believing the testimony of such witness given in examination-in-chief, however, such evidence is required to be examined with great caution.
In Ashok aliasDangra Jaiswal versus State of Madhya Pradesh, (2011) 5 SCC 123, has held as under:-
"the seizure witness turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trial particularly in cases relating to NDPS Act."
Even as per the version of the declared hostile independent witness, PW-1 Rajiv Kumar, it stands admitted by him that:-
Scorpio vehicle bearing no. HP-34C-1685 was on National Highway at the relevant time and place on the day in question;::: Downloaded on - 12/01/2024 20:32:23 :::CIS 42
The accused was also there with the vehicle; The search was given by the Investigating Officer to the accused;
.
Farad Ext.PW-1/A was prepared by the police, signed by the accused and other police officials, which also bear his signatures;
Charas recovered from the vehicle weighed 950 grams;
The parcel, containing contraband, was sealed with seal impression of seal 'T';
of A parcel of charas was taken into possession by the police vide memo Ext.PW-1/C;
Taking possession of the vehicle rt along with documents had also been admitted;
Signatures on the disclosure statement Ext.PW-1/D had been admitted along with the fact that the same was prepared by the police when the accused gave his such statement;
Signature on a sealed parcel containing 6.750 Kg.
Charas taken into possession vide memo Ex.PW-1/A has also been admitted;
Visiting the house of the accused has also been admitted;
Photographs taken by the police on the spot have been admitted showing therein the independent witness Hira Lal (PW-2), the accused and the police officials;
Association in search and seizure proceedings in the house of the accused has been admitted; Witness has nowhere complained of any threat or intimidation by the police;
It is not stated by him that he ever complained against the false implication of the accused;::: Downloaded on - 12/01/2024 20:32:23 :::CIS 43
It is not the statement of PW-1 Rajiv Kumar that he was threatened by the police. It is not stated by him that he signed the documents under any intimidation or that the documents were falsely prepared. This witness has signed .
the documents with full knowledge of the contents. It is not his case that he complained about his having been forced to sign the documents or that he signed the same without reading. Therefore, in accordance with the law laid down by the Hon'ble Apex Court, the part of the inconsistent statement of this witness has to be discarded. 10(ii). Similarly, Hira Lal (PW-2), an independent witness, of admitted that the accused Budh Ram is a resident of his village. He has also admitted his signature in sample seal Ext.PW-1/B. Association in search and recovery proceedings in the house of the accused has been admitted.
rt Association in search and seizure proceedings in the house of the accused has been admitted by this witness and has nowhere complained of any threat or intimidation by the police. It is not stated by him that he ever complained against the false implication of accused."
40. This question was also considered by Hon'ble Supreme Court in Raveen Kumar Versus State of Himachal Pradesh JT 2020 (10) SC 142 and it was held that where the witness had admitted his signatures on the memo and that was not under the influence of the police, his testimony is not sufficient to doubt the prosecution version. It was observed:
21. Although declared hostile by the prosecution, Nam Singh (PW1), admits to being literate and having signed his statement on the spot. During cross-examination, he admits to having duly perused the contents of these documents before having signed them, and of not being under any form of police pressure, thus, seriously ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 44 undermining any oral statement to the contrary. His deposition independently establishes that the Maruti van of the appellant had indeed been stopped, the appellant's consent was taken, a search had been conducted, certain .
items were seized and some substances had been weighed and sealed. Although PW1 claimed not to have specifically witnessed the seizure of the charas, but he has not denied so either. He submits that he had gone back to his shop to attend to some customers at that stage of the search. However, he admits to having been shown the extracted sample of charas, which he identified before the trial Court.
of Thus, far from undermining the prosecution version, PW1's statement broadly corroborates and strengthens the seizure of contraband substances from the possession of the appellant.
rt
41. It is apparent that both the witnesses have been contradicted with reference to their previous statements and are shown to have made two inconsistent statements on two different occasions, one before the Court and one before the police both of which cannot stand together. They are shown to have made two inconsistent statements and their credit has been impeached under Section 155 (2) of the Indian Evidence Act. It was laid down by the Hon'ble Supreme Court in Sat Pal vs. Delhi Administration AIR 1976 S.C. 294 that where a witness has been thoroughly discredited by confronting him with the previous statement, his statement cannot be relied upon. However, when he is confronted with some portions of the previous statement, his credibility is ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 45 shaken to that extent and the rest of the statement can be relied upon. It was observed:
.
"51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court by the party calling him his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the of witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and rt considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
40. This Court has also laid down in Ian Stilman versus.
State 2002(2) Shim. L.C. 16 that where a witness has been cross-
examined by the prosecution with the leave of the Court, his statement cannot be relied upon. It was observed:
12. It is now well settled that when a witness who has been called by the prosecution is permitted to be cross-examined on behalf of the prosecution, such a witness loses credibility and cannot be relied upon by the defence. We find support for the view we have taken from the various authorities of the Apex Court. In Jagir Singh v. The State ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 46 (Delhi Administration), AIR 1975 Supreme Court 1400, the Apex Court observed :
"It is now well settled that when a witness, who has been called by the prosecution, is permitted to be .
cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit this witness altogether and not merely to get rid of a part of his testimony".
41. Thus, these witnesses are shown to be unworthy of credit and their testimonies cannot be used for discarding the of prosecution's case.
42. The Investigating Officer has categorically deposed rt about the disclosure statement and the consequent recovery.
Nothing was brought in his cross-examination to showthat he was deposing falsely against the accused. The accused did not say anything against the Investigating Officer in their statements recorded under Section 313 Cr.PC. It was laid down by this Court in Budh Ram(supra) that the testimonies of the police officials cannot be discarded on the ground that they belong to the police force. It was observed:
"11. It is a settled proposition of law that the sole testimony of the police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. There is also no rule of law, which ::: Downloaded on - 12/01/2024 20:32:23 :::CIS 47 lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise trustworthy. Rule of prudence may require more careful scrutiny of their evidence. Wherever, the evidence of .
a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, can form the basis of conviction and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force."
of
43. Similar is the judgment in it was laid down in Karamjit Singh versus State AIR 2003 S.C 3011, wherein it was held:
rt "The testimony of police personnel should be treated in the same manner as a testimony of any other witness and there is no principle of law that without corroboration by independent witnesses, their testimony cannot be relied upon. The presumption that a person acts honestly applies, as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down." (Emphasis supplied)
44. Therefore, the learned courts below had rightly relied upon the testimony of the Investigating Officer.
45. Thus, the learned Courts below had rightly convicted the accused for the commission of an offence punishable under Section 379 read with section 34 of IPC.
::: Downloaded on - 12/01/2024 20:32:23 :::CIS 4846. Learned Trial Court had sentenced the accused to undergo SI for 2 years and pay a fine of ₹ 5,000/-. The theft was .
committed of public property after due deliberation and in these circumstances sentence of two years is not excessive.
47. No other point was urged.
48. In view of the above, there is no infirmity in the of judgments and orders passed by the learned Courts below. Hence, the present revision fails and the same is dismissed. Record of the rt learned Courts below be returned.
(Rakesh Kainthla) Judge 08th January, 2024.
(Ravinder) ::: Downloaded on - 12/01/2024 20:32:23 :::CIS